THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN GARRETT, et al., ) Case No. 2:18-cv-00692 

)

Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P.

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

)

SNYDER-HILL, et al., ) Case No. 2:18-cv-00736

)

 Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P. 

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

DEFENDANT THE OHIO STATE UNIVERSITY’S RESPONSE IN OPPOSITION 

TO MOTION OF GARRETT AND SNYDER-HILL PLAINTIFFS 

TO PERMIT LIMITED DISCOVERY DEPOSITIONS

Defendant The Ohio State University (“Ohio State”) respectfully provides the following 

response in opposition to the Garrett and Snyder-Hill plaintiffs’ motion to permit additional 

discovery depositions (Doc. 173) at this time. 

I. INTRODUCTION.

As directed by this Court, Ohio State has been diligently working with Senior United 

States District Judge Michael R. Barrett, the Court-appointed mediator, to do the right thing for 

all survivors of Strauss’ sexual abuse. So far, these efforts have been successful. First, on 

March 6, 2020, Ohio State reached a $40.9 million settlement with 162 survivors. Then, on 

October 12, 2020, Ohio State reached a $5.8 million settlement with an additional 23 survivors. 

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In total, Ohio State now has reached monetary settlements with 185 survivors for a total of $46.7 

million. The 185 survivors were represented by counsel in ten law firms, all of whom have 

adhered to the Court’s instructions to focus on the mediation. 

Ohio State respectfully requests that the Court deny this current motion to permit 

additional discovery depositions (Doc. 173). Plaintiffs’ motion does not assert the requested 

depositions are necessary for the mediation, and Judge Barrett has not declared a mediation 

impasse. Further, if mediation is not successful, Ohio State has pending motions to dismiss that 

will eliminate the need for these depositions. The Court should deny the requested discovery at 

this time, while the parties are engaged in mediation and Ohio State’s motions to dismiss remain

pending. 

II. RELEVANT PROCEDURAL HISTORY.

On January 17, 2019, the Court directed the parties to mediate. Snyder-Hill, Order (Doc. 

42). On March 15, 2019, the Court appointed Senior United States District Judge Michael R. 

Barrett to serve as the mediator. See Garrett, Order (Doc. 69). 

On May 15, 2019, the Perkins Coie investigators submitted to Ohio State the 182-page 

Perkins Coie Report, which made specific findings regarding “whether ‘the University’ had 

knowledge of such allegations against Strauss during the relevant time period.”

1

 As plaintiffs’ 

motion acknowledges, to uncover the truth, Ohio State “spent $6 million to hire Perkins Coie,” 

which conducted “600 interviews of 520” people. Motion (Doc. 173) at 10. The Perkins Coie 

Report also recognized that, despite certain non-cooperative witnesses, “conflicting witness 

accounts and the attrition of witness recollection,” “an exhaustive accounting of every allegation 

that we received concerning ‘University knowledge’ at all levels of personnel—would have 

 

1 Perkins Coie Report, Executive Summary at 1, available at 

https://compliance.osu.edu/assets/site/pdf/Revised_report.pdf

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reached the same factual conclusions that we reached here . . . .” Id. at 9. None of the persons 

plaintiffs now wish to depose were listed as “non-cooperative” witnesses.

Guided by its principles of transparency, Ohio State released to the public a partially 

redacted version of the Perkins Coie Report on May 17, 2019, and advocated for the public 

release of the full, unredacted Perkins Coie Report. See Garrett, Motion (Doc. 70). As stated in 

the Perkins Coie Report, Ohio State “made concerted efforts to accommodate us throughout the

entirety of the Independent Investigation”; provided “complete access to University records, and 

to current University personnel”; “placed no restrictions on the Investigative Team”; “provided 

significant assistance to the Investigative Team as we undertook efforts to identify and locate 

former University personnel”; and “encouraged those former employees to cooperate” with the 

investigators.2 In addition to the public release of the Perkins Coie Report, Ohio State also 

created a publicly accessible webpage containing updates regarding the investigation and over 

17,500 pages of records relating to Strauss.3 Concurrently with its public release of the Perkins 

Coie Report, Ohio State condemned Strauss’ conduct; apologized to survivors for the 

university’s failure at the time to stop the abuse; and expressed its appreciation to survivors for 

coming forward.

4

 

On May 24, 2019, the Court denied Ohio State’s motions to stay discovery “for the time 

being.” See Garrett, Order (Doc. 90) at 2. The Order also clarified: “Nevertheless, the Court 

encourages the parties to focus their efforts on mediation, and any discovery pursued should be 

narrowly tailored for the purposes of mediation.” Id.

On May 31, 2019, the Snyder-Hill and Garrett plaintiffs served 10 interrogatories and 18 

 

2 Perkins Coie Report at 8, available at https://compliance.osu.edu/assets/site/pdf/Revised_report.pdf

3 See May 17, 2019 Ohio State news releases, campus-wide email, and email to alumni and former student-athletes, 

available at https://compliance.osu.edu/strauss-investigation.html.

4 See, e.g., https://news.osu.edu/independent-investigation-finds-ohio-state-doctor-richard-strauss-abused-studentsfrom-1979-to-1998.

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document requests upon Ohio State, most of which were not “narrowly tailored for the purposes 

of mediation.” To facilitate the mediation, Ohio State provided informal responses to the 

discovery requests on June 13, 2019, prior to the beginning of the mediation, and formal 

responses on July 1, 2019. As part of its responses to these discovery requests, Ohio State also 

produced an additional 4,186 pages of insurance-related documents to plaintiffs on June 13, 

2019. To date, Ohio State has not sought any affirmative discovery from plaintiffs so that the 

parties can focus their efforts on mediation. 

On July 26, 2019, the Garrett and Snyder-Hill plaintiffs filed a motion requesting to 

depose current and former Ohio State employee physicians who purportedly refused to cooperate 

with the Perkins Coie investigation. The Garrett and Snyder-Hill plaintiffs asserted they needed 

to do so to “aid the mediation effort” because “the mediation is grounded on the incomplete 

Report.” Snyder-Hill, Motion (Doc. 81) at 2. 

On August 23, 2019, the Court granted the Garrett and Snyder-Hill plaintiffs’ request to 

take the depositions of the non-cooperative Perkins Coie witnesses, finding that: “the limited 

discovery requested by Plaintiffs is relevant and tailored for the purposes of mediation.” Garrett, 

Order (Doc. 108) at 2. However, the Court stated: “The Court is adamant, however, about 

avoiding a slippery slope that leads to full discovery during mediation.” Garrett, Order (Doc. 

108) at 2. 

Pursuant to the Court’s August 23, 2019 order, counsel for the Garrett and Snyder-Hill

plaintiffs deposed Dr. John Lombardo, Dr. Ted Grace, Dr. Trent Sickles, Dr. William Malarkey, 

Dr. Roger Smith, and Dr. Forrest Smith on November 12, 2019, November 20, 2019, November 

21, 2019, November 22, 2019, February 12, 2020, and February 13, 2020, respectively.

On February 24, 2020, despite the ongoing mediation, counsel for the Garrett and 

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Snyder-Hill plaintiffs placed on file with the Court what they labeled a “Notice of Mediation 

Termination and Request for Scheduling.” Snyder-Hill, Notice (Doc. 133). The notice asked the 

Court to “allow litigation to resume” based on the purported grounds that “OSU has not 

participated in the mediation process in good faith,” and “OSU will not take Plaintiffs’ claims 

seriously until OSU’s statute of limitations defense is defeated in a motion to dismiss.” Id. 

Less than two weeks later, on March 6, 2020, Ohio State and 162 plaintiffs in the 

majority of the pending cases announced a $40.9 million settlement (approximately $252,000 

per-survivor average) following months of extensive negotiations through the Court mediation 

process. See DiSabato, Unopposed Motion to Establish 468B Qualified Settlement Fund (Doc. 

41) at ¶¶ 1, 3. None of the plaintiffs in the settling cases opted out of the settlement. Id. at ¶ 4. 

On April 17, 2020, the Court “partially lift[ed]” the “mediation stay” to allow “parallel 

mediation and litigation efforts” based on the mediator’s recommendation. See Snyder-Hill, 

Order (Doc. 120), at 1. Specifically, the Court ordered, “[f]or administrative efficiency, each 

group of attorneys who represents multiple non-settling cases to choose one of the case numbers 

in which to file an Amended Complaint that incorporates all of the non-settling Plaintiffs whom 

that group of attorneys represents” and further ordered Ohio State to respond to the amended 

complaints. Id. at ¶¶ 3(b) & 5. The April 17, 2020 order also stated: “Nothing in this Order 

should be construed as an indication by the Court that mediation efforts should cease. The Court 

fully expects the parties to continue their mediation efforts under the direction of Judge Barrett.”

Id. at ¶ 6.

Pursuant to the Court’s April 17, 2020 order, the Garrett and Snyder-Hill plaintiffs filed 

their respective consolidated amended complaints on May 27, 2020, and the Nutter, and Ratliff

plaintiffs filed their consolidated amended complaints on June 9, 2020. Garrett, Consol. Am. 

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Compl. (Doc. 157); Snyder-Hill, SAC (Doc. 123); Nutter, Am. Compl. (Doc. 33); Ratliff, Am. 

Compl. (Doc. 18). On June 30, 2020, Ohio State filed its motions to dismiss the Nutter and 

Ratliff amended complaints based on the two-year statute of limitations bar; Eleventh 

Amendment sovereign immunity as a bar to plaintiffs’ Section 1983 claims; and failure to state a 

claim for unlawful retaliation under Title IX. See Nutter, MTD (Doc. 36); Ratliff, MTD (Doc. 

21). On July 7, 2020, Ohio State filed its motions to dismiss the Garrett and Snyder-Hill

consolidated amended complaints based on the two-year statute of limitations bar and that five

plaintiffs lacked standing to state Title IX claims against Ohio State because they were not Ohio 

State students or employees at the time of the abuse. See Garrett, MTD (Doc. 162); Snyder-Hill,

MTD (Doc. 128). The Garrett and Snyder-Hill plaintiffs filed their respective opposition briefs 

to Ohio State’s motions to dismiss on August 4, 2020, and the Nutter and Ratliff plaintiffs filed 

their respective opposition briefs on August 17, 2020. See Garrett, Opp. (Doc. 169); SnyderHill, Opp. (Doc. 133); Nutter, Opp. (Doc. 40); Ratliff, Opp. (Doc. 26). All four opposition briefs 

scolded Ohio State and the 162 survivors for reaching the settlement on March 6, 2020. Ohio 

State filed its reply briefs in support of its respective motions to dismiss on August 18, 2020, in 

the Garrett and Snyder-Hill cases, and on August 31, 2020, in the Nutter and Ratliff cases. See 

Garrett, OSU Reply (Doc. 170); Snyder-Hill, OSU Reply (Doc. 135); Nutter, OSU Reply (Doc. 

42); Ratliff, OSU Reply (Doc. 28). 

On October 13, 2020, Ohio State and an additional 23 plaintiffs in five cases announced a 

$5.8 million settlement (at the same approximately $252,000 per-survivor average as the March 

6, 2020 settlement). To date, the university has now settled with 185 survivors, represented by 

10 different law firms, in a total of 17 cases, for a total settlement of $46.7 million. 

In response to the October 13, 2020 settlement, counsel for the Garrett and Snyder-Hill

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plaintiffs sent letters to the NCAA and the Big Ten; held a press conference; and gave media 

interviews. These counsel accused Ohio State of engaging in “delay tactics and broken 

promises” and “evading accountability” by settling “low,” and requested that both organizations 

investigate and sanction Ohio State, and establish a fund for their clients.

5

See Exhibit A. 

On October 15, 2020, two days after the second wave of settlements was announced, the 

Garrett and Snyder-Hill plaintiffs also filed the instant motion requesting leave to take the 

depositions of Andy Geiger, Dr. Manuel Tzagournis, Doris Charles, and Russ Hellickson on the 

grounds that the witnesses are of advanced age and may become unavailable or incapable of 

testifying. Garrett, Motion (Doc. 173). The motion omits the following emailed response from 

Ohio State’s attorney to plaintiffs’ counsels’ inquiry regarding Ohio State’s position on the 

request to take the depositions: “You should reflect that Ohio State will not be consenting to the 

depositions as we believe our efforts should be focused on the continuing mediation, and our 

time is better spent working towards a resolution.” See October 14, 2020 email from Michael H. 

Carpenter to Stephen Estey, et al. (attached as Exhibit B). 

Since the start of the mediation, Ohio State has continued to participate in good faith in 

the mediation process with all survivors, including the Garrett and Snyder-Hill plaintiffs, and 

remains committed to a resolution with the remaining plaintiffs, including a monetary resolution.

III. DISCUSSION.

A. The Requested Additional Depositions Are Not Necessary For Mediation.

The Court repeatedly has directed the parties to focus their efforts on mediation; 

 

5 https://osumetoo.com/osu-ncaa-big-ten-investigation/; 

https://www.youtube.com/watch?v=PlXfqv9enlk&fbclid=IwAR1HmAOUYWUv58lTus-BRN8EGye8BprZVw6dEx_XFdjY_M1WQm12LcAZf0; 

https://www.facebook.com/watch/live/?v=376065796861438&ref=watch_permalink; 

https://www.youtube.com/watch?v=VWQd8yvV2i4&feature=youtu.be&fbclid=IwAR267yNMAFRSsm1GXS3Y8_

luBs9f0848wycrEp7BFGB7PGtcx-I63Vfapxc

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instructed that any discovery pursued should be narrowly tailored for the purposes of mediation; 

and discouraged the filing of motions unnecessary to the furtherance of mediation unless and 

until Judge Barrett informs the Court that mediation has reached impasse.

The Court’s April 27, 2020 order did not alter these prior, consistent directives regarding 

discovery. In fact, it reinforced them. Based on Judge Barrett’s recommendation, the April 27, 

2020 order only “partially lift[ed]” the “mediation stay” for the expressly stated “goal” of 

“administrative efficiency” in “reduc[ing] the amount of non-settling cases to, at most, one by 

each group of attorneys” by directing the non-settling plaintiffs who are represented by the same 

groups of attorneys to file amended, consolidated complaints in a single action and directing 

Ohio State to respond to the complaints. Importantly, the April 17, 2020 order re-emphasized 

that “[n]othing in this Order should be construed as an indication by the Court that mediation 

efforts should cease. The Court fully expects the parties to continue their mediation efforts under 

the direction of Judge Barrett.” 

Unlike their prior motion requesting leave to take the depositions of “non-cooperative” 

Perkins Coie witnesses, the Garrett and Snyder-Hill plaintiffs’ current motion requesting leave to 

take additional depositions does not assert that the witnesses they seek to depose failed to 

cooperate with Perkins Coie or that the requested depositions are necessary for mediation. 

If plaintiffs’ motion is granted, it would open the door to additional requests by plaintiffs 

for full-scale discovery. As plaintiffs’ own motion states: “Undoubtedly there will be more 

Preservation Witnesses with highly relevant information whose testimony needs to be preserved” 

and additionally notes that the current depositions requested are merely a “reasonable start.” 

Garrett, Motion (Doc. 173) at 8. Because the discovery requested by plaintiffs is not necessary 

for the mediation, it exceeds the Court’s prior orders permitting only narrowly tailored discovery 

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for purposes of the mediation. The motion should be denied.

B. The Requested Discovery Is Inappropriate While Ohio State’s Motions to 

Dismiss Remain Pending.

The Sixth Circuit consistently has found that “[l]imitations on pretrial discovery are 

appropriate where claims may be dismissed based on legal determinations that could not have 

been altered by any further discovery.” Gettings v. Bldg. Laborers Local 310 Fringe Benefits 

Fund, 349 F.3d 300, 304 (6th Cir. 2003) (district court did not abuse its discretion in staying 

discovery where dispositive motion involved legal determinations) (citation and quotation marks 

omitted); Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 644 (6th Cir. 2005) (affirming district 

court’s sua sponte stay of discovery because “it was not unreasonable for the district court to 

conclude that the case could be disposed of on the face of the complaint and that discovery 

would not affect the outcome”).

Courts within the Sixth Circuit consistently recognize that a pending motion to dismiss 

based on lack of standing, a statute of limitations bar, or sovereign immunity involves “narrow,” 

“fundamental,” “clear-cut,” and “straightforward legal issue[s]” warranting stays and limitations

on discovery. Marshall v. Mausser, No. 1:13-CV-847, 2014 WL 4774377, at *3 (S.D. Ohio 

Sept. 24, 2014); Lenker v. Nat’l Serv. Indus., Inc., No. 2:04-CV-0523, 2006 WL 642560, at *3 

(S.D. Ohio Mar. 9, 2006); Osman v. Mission Essential Pers., LLC, No. 2:11-CV-577, 2012 WL 

1831706, at *2 (S.D. Ohio May 18, 2012); Nabi Biopharmaceuticals v. Roxane Labs., Inc., No. 

2:05-CV-0889, 2006 WL 3007430, at *2 (S.D. Ohio Oct. 20, 2006); Miami Valley Fair Hous. 

Ctr., Inc. v. Preferred Real Estate Investments, LLC, No. 2:15-CV-2737, 2017 WL 914735, at *9 

(S.D. Ohio Mar. 8, 2017); see also Falzone v. Licastro, N.D.Ohio No. 1:10-CV-2918, 2011 WL 

13242876, *1 (“Accordingly, the Court GRANTS Defendant Sweet’s motion to stay discovery 

pending resolution of his motion to dismiss,” which argued, among other things, that plaintiff’s 

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civil rights claims were time-barred). 

Plaintiffs’ motion does not assert that the requested depositions are necessary to the 

statute of limitations, standing, or sovereign immunity defenses asserted in Ohio State’s motions 

to dismiss. In fact, the Snyder-Hill plaintiffs themselves took the position in their jointly-filed 

Rule 26(f) Report that all discovery should occur after “the Court’s entry [] ruling on 

Defendant’s Motion to Dismiss.” See Rule 26(f) Report (Doc. 20), at ¶¶ 2, 7(a), 7(c). The simple 

truth is that plaintiffs’ asserted reason for requesting additional depositions—that “the events at 

issue began in the late 1970s,” sixty witnesses have died, and those witnesses who are still alive 

are “now elderly” and “may become unavailable or incapable of testifying to the facts that they 

possess,” Motion (Doc. 173) at 4, 9—further underscores the fundamental purpose behind 

statutes of limitations. See American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974) 

(explaining that the statute of limitations is “designed to promote justice by preventing surprises 

through the revival of claims that have been allowed to slumber until evidence has been lost, 

memories have faded, and witnesses have disappeared.”). Plaintiffs’ discovery request should be 

denied while mediation proceedings are ongoing and Ohio State’s motions to dismiss are 

pending. 

IV. CONCLUSION.

The Court directed the parties to mediate. That mediation has been successful for 185 

survivors. Ohio State still hopes mediation will succeed and the remaining plaintiffs will agree 

to settle. For the foregoing reasons, the Court should deny the Garrett and Snyder-Hill

plaintiffs’ motion to permit discovery depositions (Doc. 173).

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Respectfully submitted, 

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

Special Counsel for Defendant 

The Ohio State University

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was filed electronically on November 5, 

2020. Notice was sent by operation of the Court’s electronic filing system to all other counsel 

who have entered an appearance and any parties who have entered an appearance through 

counsel. The parties may access this filing through the Court’s ECF system. 

/s/ Michael H. Carpenter

Trial Attorney for 

Defendant The Ohio State University

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