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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

OHIO V. PHILIP RANDOLPH INSTITUTE, 

et al., 

Plaintiffs, 

vs. 

RYAN SMITH, Speaker of the Ohio House 

of Representatives, et al., 

Defendants. 

Case No.: 1:18-cv-00357-TSB 

Judge Timothy S. Black 

Circuit Judge Karen Nelson Moore 

Judge Michael H. Watson 

Magistrate Judge Karen L. Litkovitz 

IN RE: SUBPOENAS SERVED ON 

REPUBLICAN NATIONAL COMMITTEE, 

NATIONAL REPUBLICAN 

CONGRESSIONAL COMMITTEE, 

AND 

ADAM KINCAID 

Transferred from the United States 

District Court for the District of 

Columbia, 

Civil Action No. 18-mc-00031 

RESPUBLICAN NATIONAL COMMITTEE’S, NATIONAL REPUBLICAN 

CONGRESSIONAL COMMITTEE’S, AND ADAM KINCAID’S EMERGENCY 

MOTION TO STAY COURT’S ORDER GRANTING PLAINTIFFS’ MOTION TO 

COMPEL 

Pursuant to Fed. R. App. P. 8(a)(1), the Republican National Committee (“RNC”), the 

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

(collectively “Respondents”), move this Court to stay its December 21, 2018 order compelling 

Respondents to comply with Plaintiffs’ Motion to Compel pending an expedited appeal or 

petition for mandamus. (ECF 128) (Page ID 3465-3483). A memorandum of law supporting this 

Motion follows. 

Respondents have consulted with Plaintiffs concerning the relief sought. Plaintiffs object 

to this Motion and intend to file a response by Thursday, December 27, 2018. 
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MEMORANDUM IN SUPPORT 

INTRODUCTION 

When Julius Caesar crossed the Rubicon, he did so confident that a meaningful victory 

was—at the very least—possible.1 By contrast, this Court’s order compels the RNC, NRCC, and 

Kincaid to cross the Rubicon of discovery, an act that cannot be undone even by a successful 

appeal. Plaintiffs will have received, reviewed, and—pending this Court’s order—used the 

privileged documents. All this despite the fact that Plaintiffs’ attorneys are some of the very 

people to whom Respondents asserted they did not want their communications, strategies, and 

mental impressions disclosed.2 Accordingly, the RNC, NRCC, and Kincaid request that this 

Court stay its order pending an expedited appeal or petition for mandamus. 

Nevertheless, the RNC, NRCC, and Kincaid understand that discovery is closed and the 

dispositive motions deadlines are looming. Accordingly, in an effort to be as accommodating as 

possible, Respondents are willing to seek expedited review of its appeal or petition for 

1

 “In 49 B.C., Julius Caesar halted his army on the banks of the Rubicon River in northern Italy. 

According to Suetonius, he paused in momentary hesitation, before sweeping across the waters 

toward Rome with the immortal phrase Alae iacta est (The die has been cast). By violating an 

ancient Roman law forbidding any general to cross the Rubicon with an army, Caesar's decision 

made war inevitable. Ever since, ‘crossing the Rubicon’ has come to symbolize a point of no 

return . . . .” Dominic D.P. Johnson & Dominic Tierney, The Rubicon Theory of War: How the 

Path to Conflict Reaches the Point of No Return, 36 INT'L SECURITY 7, 7 (2011) (citing C. 

Suetonius, LIVES OF THE CAESARS, VOLUME 1: JULIUS, AUGUSTUS, TIBERIUS, 

GAIUS, CALIGULA (J.C. Rolfe trans., Harv. Univ. Press 1989)). 

2

 As will be discussed in more detail infra, it is not the mere fact that these attorneys are adverse 

to Respondents in this litigation, it is that some of the counsel are adverse to Respondents 

political and legal interests in future litigation and elections as well. See generally Ex. C to 

Resp.ts’ Opp.’n to Pls.’ Mot. to Compel (Page ID 457-476). 
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Mandamus. Due to the holidays, Respondents intend to file their petition for mandamus or 

opening appellate brief no later than Thursday January 3, 2019.3

STANDARD OF REVIEW 

In evaluating a motion for stay, this Court balances the following four factors: (1) 

whether Respondents are likely to succeed on the merits of their appeal; (2) whether absent a 

stay, Respondents will likely suffer irreparable harm; (3) whether if the Court grants the stay, 

Plaintiffs will likely suffer harm; and (4) whether it is in the public’s interest to grant the stay. 

Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006). Also 

similar to the standard to evaluate a motion for preliminary injunction, “[a]ll four factors are not 

prerequisites but are interconnected considerations that must be balanced together.” Id. 

Accordingly, a strong showing of one factor may overcome any weaknesses of the others. Id. at 

252; Ams. United for Separation of Church & State v. Grand Rapids, 922 F.2d 303, 306 (6th Cir. 

1990). 

ARGUMENT 

I. THE RNC, NRCC, AND KINCAID ARE LIKELY TO SUCCEED ON THE 

MERITS OF THEIR APPEAL OR PETITION FOR MANDAMUS. 

A. First Amendment Standard. 

Because the right to free speech is enhanced through associating with others, Buckley v. 

Valeo, 424 U.S. 1, 15 (1976), and the associational right is effectively exercised when the 

association is able to formulate messages and develop strategies in private, courts have 

developed a framework to protect from disclosure internal associational communications. See, 

e.g., Perry v. Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010). First, the party asserting the 

3

 In this Motion to Stay, Respondents focus their arguments on this Court’s ruling concerning the 

First Amendment privilege. The RNC preserves its arguments concerning this Court’s ruling 

regarding the RNC’s attorney-client privilege and attorney work-product for appeal. 
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protections of the First Amendment privilege must make a prima facie case that disclosure could 

arguably infringe its First Amendment rights. Black Panther Party v. Smith, 661 F.2d 1243, 

1267-68 (D.C. Cir. 1981). Because the right to associate to formulate strategies to influence the 

political process is enshrined in the First Amendment, the burden to demonstrate a prima facie

case of infringement is light. Id. at 1267-68; N.Y. State NOW v. Terry, 886 F.2d 1339, 1355 (2d 

Cir. 1989). 

Once the party resisting discovery satisfies this threshold showing, the burden shifts. This 

Court must therefore “carefully examine[]” the need for disclosure. Black Panther Party, 661 

F.2d at 1268. The party seeking disclosure must show that the information sought “goes to the 

heart of the matter,” meaning that the information sought is “crucial” to the party’s case. Id. The 

party must “describe the information they hope to obtain and its importance to their case with a 

reasonable degree of specificity.” Id. This high burden of requiring a demonstration that the 

information sought is “crucial” to the party’s case, is necessary because if the information is not 

crucial then there is no compelling need to infringe the resisting party’s constitutional rights. 

Disclosure must be kept to a minimum. Id. 

Then, the party seeking disclosure must show that it has exhausted every reasonable 

alternative avenue of obtaining the information sought. Id. If a less intrusive means of obtaining 

the information exist, the party seeking disclosure must use that means. Perry, 591 F.3d at 1161. 

Only if the party seeking disclosure satisfies these elements then the Court must balance 

the threat to the First Amendment rights at stake with the need for the information. See id; see 

also Black Panther Party, 661 F.2d at 1267; see AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 

2003) (although the evidence of First Amendment infringement was not as strong as in cases of 

reprisals and harassment, First Amendment harm still existed). 
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Although this Court correctly found that Respondents satisfied their burden of 

demonstrating prima facie harm, Mem. Op. at 8-9 (Page ID 3472-73), the Court improperly 

analyzed Plaintiffs’ burden to demonstrate that the information sought is crucial to proving 

discriminatory intent. The Court then failed to address Respondents’ arguments that the 

information sought is, as a matter of fact and law, not crucial to Plaintiffs’ case. Then, the Court 

mischaracterized Respondents’ affidavits as conclusory. 

B. This Court Erroneously Applies The Standard. 

This Court was required to determine whether Plaintiffs satisfied their burden in 

establishing that the information Respondents withheld as privileged is “crucial” to establishing 

partisan intent. See Resps’ Opp.’n to Pls.’ Mot. to Compel at 11, 22-25 (Page ID 423-426) Black 

Panther Party, 662 F.2d at 1268; Mem. Op. at 10 (Page ID 3474).4

First, rather than determining whether Plaintiffs satisfied their burden, the Court went 

straight to balancing the Plaintiffs’ need for the information sought with the Respondents First 

Amendment rights. Mem. Op. at 9 (Page ID 3473). This is an error of law because the Court 

must first determine if Plaintiffs satisfied their burden, namely by demonstrating that the 

information sought is crucial to proving intent. Then, only if the Plaintiffs have met this burden, 

the Court must determine if Plaintiffs exhausted all reasonable alternatives to obtaining the 

4

 This Court stated that Plaintiffs’ partisan gerrymandering claims are important. Mem. Op 9 

(Page ID 3473). But it is not clear whether Plaintiffs claims are viable. See, e.g., Gill v. Whitford, 

138 S. Ct. 1916, 1929 (2018) (holding that plaintiffs’ lacked standing and ruling that a majority 

of the Court still had not ruled whether partisan gerrymandering claims are justiciable). The 

Court will decide the viability of partisan gerrymandering claims soon. See Rucho v. Common 

Cause, No. 18-422 (U.S. Dec. 19, 2018) (scheduled for conference on whether to note probable 

jurisdiction on Jan. 4, 2019); Lamone v. Benisek, No. 18-726 (U.S. Dec. 19, 2018) (scheduled for 

conference on whether to note probable jurisdiction on Jan. 4, 2019). This too counsels in favor 

of a stay pending appeal since compelled disclosure will infringe Respondents’ First Amendment 

rights under a theory the Supreme Court may later determine is not viable. Again, once 

disclosed, the documents cannot be undisclosed. 
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information sought. Only after the Plaintiffs have satisfied these successive burdens does the 

Court balance the interests of the parties. Resp’ts’ Opp.’n to Pls.’ Mot. to Compel at 11. 

Second, the Court erred in determining that the documents Plaintiffs seek are “relevant” 

to their claim that national Republicans drew the Ohio congressional map. Mem. Op. at 10 (Page 

ID 3474) (“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.”) (emphasis added). 

At the outset, the proper standard is not whether the documents sought are relevant. Rather, the 

proper standard is whether the documents sought are “crucial” or “highly relevant.” Black 

Panther Party, 662 F.2d at 1268; Perry, 591 F.3d at 1161 (imposing a requirement that 

documents sought must be “highly relevant” and rejecting the relevancy standard). In this the 

Court committed an error of law. 

Third, the Court misapplied the test to determine whether the information Plaintiffs seek 

is crucial. The Court stated that the information sought goes “to support a crucial element of 

their partisan gerrymandering claim.” Mem. Op. 12 (Page ID 3476) (emphasis added). That is 

not the test. If it were, then parties seeking discovery would always satisfy this prong of the First 

Amendment privilege analysis because all elements to a claim are “crucial” to establishing the 

claim. Instead, the case law requires Plaintiffs prove that the information sought is crucial or 

highly relevant to proving a claim—here that the Ohio legislature acted with partisan intent. 

Black Panther Party, 661 F.2d at 1268; Perry, 591 F.3d at 1161 (“Importantly, the party seeking 

the discovery must show 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).”) (emphasis added). 
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Additionally, the Plaintiffs do not claim that national Republican groups allegedly drew 

the map. Mem. Op. 10 (Page ID 3474). Rather, Plaintiffs merely allege that national Republican 

groups drew the map. Plaintiffs claim that their First Amendment rights and Fourteenth 

Amendment equal protection rights were violated. Both the First Amendment and Fourteenth 

Amendment claims require proof of discriminatory intent. Resp’ts.’ Opp.’n to Pls.’ Mot. to 

Compel at 22. The question then is whether the information sought is crucial to Plaintiffs 

satisfying the discriminatory intent standard. Black Panther Party, 661 F.2d at 1268; Perry, 591 

F.3d at 1161. 

If this Court holds that the information sought must be crucial to allegations contained in 

the Complaint, then the standard will be even more relaxed than the standard enunciated in the 

Federal Rules of Civil Procedure for simply seeking discovery. The Rules require a discovery 

requested to be anchored in a claim. See Fed. R. Civ. P. 26(b)(1), as distinguished from an 

allegation. 

Furthermore, if this Court holds that the First Amendment privilege can be overruled if a 

few allegations are contained in a complaint and as opposed to being crucial to a claim, then the 

associations’ First Amendment rights are subject to the artful pleading of political enemies. AFLCIO, 333 F.3d at 178 (stating that the FEC’s automatic disclosure of enforcement documents 

“encourages political opponents to file charges against their competitors to serve the dual 

purpose of 'chilling' the expressive efforts of their competitor and learning their political strategy 

so that it can be exploited to the complainant's advantage.”). 

Fourth, this Court did not address the RNC’s, NRCC’s, and Kincaid’s arguments 

regarding the Ninth Circuit’s decision in Perry. This omission is error because Respondents’ 

central argument—comprising no less than five pages of their brief—is that if the documents 
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sought in Perry were not crucial to proving that the California voters who voted for Proposition 8 

acted with unconstitutional animus, then the information sought here is similarly not crucial. 

Resp’ts.’ Opp.’n to Pls.’ Mot. to Compel at 22.-25, 31-32. Succinctly stated, if documents 

containing internal strategy communications within the official Proposition 8 campaign 

organization were not crucial or highly relevant to proving animus against homosexual persons 

on the part of Proposition 8 supporters, then the information Plaintiffs’ seek about illicit intent on 

the part of the Ohio legislature is equally not crucial. Perry, 591 F.3d at 1165. This comparison 

is relevant since the complaints in both cases allege similar unconstitutional intent and animus. 

Compare Second Amend. Compl. ¶¶ 52-55 (stating that the national Republican Party drew 

Ohio’s congressional districts with intent to entrench a Republican congressional majority) with

Perry v. Schwarzenegger, No. 09-02292 (N.D. Cal. May 22, 2009) (ECF 1-1) (Compl. ¶ 43) 

(stating that Proposition 8 was adopted as a result of animus against a politically unpopular 

group and that the history of Proposition 8’s adoption shows that it was backlash against rights 

recently conferred upon gays and lesbians). This Court failed to address this argument. 

Fifth, the Court erred in how it characterized AFL-CIO’s statement that the threat to First 

Amendment rights is far less compelling when the disclosing party does not allege that 

disclosure would subject the disclosing party to violence, economic reprisals, and harassment. 

Mem. Op. 12 (Page ID 3476). Although true, the sentence cited continues stating that the 

difference between the affidavits that the Democratic National Committee submitted in AFLCIO, and the facts asserted in NAACP v. Alabama, speak only to the strength of the First 

Amendment interests asserted, not to their existence. AFL-CIO, 333 F.3d at 176. In the end, the 

D.C. Circuit upheld the Democratic National Committee’s assertion of First Amendment 

privilege in a case involving potential criminal violations. See id. at 171, 175-76; 52 U.S.C. 
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30109(d) (knowing and willful violations of corporate contributions are criminal violations); 

Perry, 591 F.3d at 1161 (cases involving allegations of criminal wrongdoing provide a 

compelling interest to the information sought). 

Sixth, the Court is mistaken that Respondents’ affidavits are conclusory, containing 

“boilerplate” language that did not explain how disclosure would impact the RNC’s, NRCC’s, 

and Kincaid’s internal operations. Mem. Op. at 12 (Page ID 3476). This is simply incorrect. The 

affidavits gave substantive descriptions of the documents withheld, see Winkelman Aff. ¶ 9 

(Page ID 465-66); Oldham Aff. ¶ 7 (Page ID 459-60); and Kincaid Aff. ¶¶ 14 (Page ID 473-74); 

described that the documents contained mental impressions and strategies, see Winkelman Aff. 

¶¶ 12, 14 (Page ID 468); Oldham Aff. ¶¶ 9, 11 (Page ID 461); Kincaid Aff. ¶¶ 17, 19 (Page ID 

474), and explained why disclosure to Plaintiffs would harm the association and frustrate the 

internal workings of the association, see Winkelman, Aff. ¶¶ 13-14, 16, 21 (Page ID 468-69); 

Oldham Aff. ¶¶ 10-13, 17-18, (Page ID 461-63); Kincaid Aff. ¶¶ 18-19, 21-22, 26-27, (Page ID 

474-75). Accordingly, these affidavits are anything but conclusory.5 In fact, these affidavits are 

consistent with what courts have held as sufficient to demonstrate that the First Amendment 

privilege applies. See AFL-CIO, 333 F.3d at 176-77 (stating that disclosure of polling data, 

member mobilization campaigns and state-by-state strategies would reveal to political opponents 

strategies and tactics that entity would likely use again implicates significant First Amendment 

interests and intrudes on the “privacy of association and belief” guaranteed under the First 

Amendment); Perry, 591 F.3d at 1163; In re Motor Fuel Temperature Sales Practices Litig., 641 

F.3d 470, 492-93 (10th Cir. 2011) (Kelly, J., concurring). 

5

 Additionally, if Respondents added any additional information to their affidavits, that were 

approximately six pages each, they risked revealing precisely what the privilege protects. 
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Seventh, finally, this Court’s reliance on Bethune-Hill is misplaced because its statement 

that “officials seldom, if ever, announce on the record that they are pursuing a particular course 

of action...” is taken out of context. Mem. Op. 11 n.5 (Page ID 3475). The court in Bethune-Hill

made that statement in the context of overruling a legislative privilege objection. The argument 

the court was rejecting was that plaintiffs there could obtain the information they sought—

legislative intent in redistricting case—from “special interest group position papers, press 

releases, newspaper articles, census reports, registered voter data and election returns.” BethuneHill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 341 (E.D. Va. 2015) (three-judge court). 

The Bethune-Hill ruling permitted plaintiffs to obtain the email communications of legislators. 

Id. at 330. 

Here Plaintiffs obtained legislative emails and were able to seek legislative 

communications through freedom of information requests. Resp.ts’ Opp.n to Pls.’ Mot. to 

Compel 30-31; see Ohio Redistricting Transparency Report The Elephant in the Room6 at 16-18, 

21 (quoting emails from Senator Niehaus, Ray DiRossi, Heather Mann and stating that Plaintiff 

League of Women Voters of Ohio, in response to its freedom of information act request 

received documents from “Governor Kasich, Senator Niehaus, Senator Faber, Leader Budish, 

Heather Mann, Ray DiRossi, and the Legislative Services Commission....”). Accordingly, unlike 

the plaintiffs in Bethune-Hill, Plaintiffs here have obtained internal legislative communications.

Furthermore, Plaintiffs did not obtain some documents because—having waited over six years—

Plaintiffs were dilatory in bringing their claims. Plaintiffs should not benefit from their delay by 

violating the RNC’s, NRCC’s, and Kincaid’s internal communications. 

6

 Available at https://my.lwv.org/sites/default/files/leagues/wysiwyg/%5Bcurrent-user%3Aoguser-node%3A1%3Atitle%5D/the_elephant_in_the_room_-_transparency_report.pdf (last visited 

Dec. 24, 2018). 
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Accordingly, Respondents are likely to succeed on the merits, which weighs strongly in favor of 

granting the requested stay pending Respondents’ expedited petition for mandamus, to allow for 

meaningful appellate review. 

II. ABSENT A STAY, THE RNC, NRCC, AND KINCAID WILL SUFFER 

IRREPARABLE HARM. 

The very definition of irreparable harm is a harm that once occurred cannot be undone 

through monetary remedies. Performance Unlimited v. Questar Publishers, 52 F.3d 1373, 1382 

(6th Cir. 1995). The Sixth Circuit has recognized that “an erroneous forced disclosure of 

confidential information could not be adequately remedied on direct appeal because a court 

cannot restore confidentiality to documents after they are disclosed.” In re Professionals Direct 

Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009); In re Lott, 424 F.3d 446, 452 (6th Cir. 2005) (“If the 

District Court's discovery order is in error and Lott's counsel is wrongfully forced to disclose 

privileged communications, there is no way to cure the harm done to Lott or to the privilege 

itself, even if some of the disclosure's consequences could be remedied on direct appeal.”). 

“[O]nce privileged materials are ordered disclosed, the practical effect of the order is often 

“irreparable by any subsequent appeal.” UMG Recording, Inc. v. Bertelsmann AG (In re Napster 

Copyright Litig.), 479 F.3d 1078, 1088 (9th Cir. 2007) (internal citations omitted). Erroneous 

privilege rulings lead to persisting prejudice against the party compelled to produce documents, a 

prejudice that is difficult to undo. See Irth Sols., LLC v. Windstream Communs., LLC, No. 16-

219, 2018 U.S. Dist. LEXIS 66093, *4 (S.D. Ohio April 19, 2018) (certifying interlocutory 

appeal of attorney-client privilege claim because construction of Fed. R. Evid. 502 is a question 

of law). 

The Court has attempted to create two layers of equally unhelpful limitations. First, the 

Court has a “confidentiality order” in place that in no way protects against the associational 
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harms that Respondents’ allege. Second, this Court’s “attorney’s eyes only” restriction while on 

appeal does not effectively protect Respondents from their greatest concern for exposure: the 

release of documents to some of the attorneys themselves. This is especially true since one of the 

firms representing Plaintiffs is Covington and Burling. Eric Holder is a partner at Covington and 

Burling and Chairman of the National Democratic Redistricting Committee. See, e.g., Oldham 

Aff. ¶ 13 (Page ID 462). Furthermore, the ACLU, another entity representing Plaintiffs, supports 

Democratic candidates. Id. ¶ 17 (Page ID 462). 

Even with this Court’s limitation that the documents be produced and shared with the 

attorneys, consultants, and testifying experts only, the privilege is still violated. The point of the 

First Amendment privilege, similar to the Attorney-Client privilege, is to encourage associational 

communications to formulate strategies and messages. Reed v. Baxter, 134 F.3d 351, 356 (6th 

Cir. 1998) (stating that the purpose of the attorney-client privilege is to encourage 

communication between client and attorney); Perry, 591 F.3d at 1162-63 (“Implicit in the right 

to associate with others to advance one's shared political beliefs is the right to exchange ideas 

and formulate strategy and messages, and to do so in private. Compelling disclosure of internal 

campaign communications can chill the exercise of these rights.”). Once the documents are 

disclosed, this purpose—internal communications made in private—is irreparably harmed. Lott, 

424 F.3d at 451-52. “Mandatory disclosure of the communications is the exact harm the 

privilege is meant to guard against, and this disclosure is not remedied merely because a 

disclosed confidence is not used against the holder in a particular case.” Id. Accordingly, if this 

Court refuses to grant a stay and compels the RNC, NRCC, and Kincaid to disclose their 

documents while the appeal is pending, “there is no way to cure the harm done to [Respondents] 
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or to the privilege itself, even if some of the disclosure's consequences could be remedied on 

direct appeal.” Id. at 452. 

Additionally, the disclosure of the withheld documents—even under this Court’s 

attorneys’ eyes only limitation—is precisely the disclosure the RNC, NRCC, and Kincaid sought 

to avoid. Winkelman Aff. ¶¶ 13-14, 16, 20-21 (Page ID 468-69); Oldham Aff. ¶¶ 11-13, 17-18 

(Page ID 461-63); Kincaid Aff. ¶¶ 17-19, 21-22, 26-27 (Page ID 474-75). The concerns 

Respondents had regarding disclosure will come true, namely, that the very attorneys who will 

continue to advise Democratic legislators concerning redistricting, and who support Democratic 

campaigns, will know the internal communications and strategies of the RNC, NRCC, and 

Kincaid. Winkelman Aff. ¶¶ 13-14, 16, 20-21 (Page ID 468-69); Oldham Aff. ¶¶ 11-13, 17-18 

(Page ID 461-63); Kincaid Aff. ¶¶ 17-19, 21-22, 26-27 (Page ID 474-75). The Sixth Circuit has 

already recognized that an “attorneys eyes only” limitation is inadequate when disclosure to your 

adversary is precisely what you want to avoid. The Sixth Circuit ruled: 

In the case of the attorney-client privilege, however, a litigant claiming the 

privilege would probably prefer almost anyone other than adversary counsel to 

review the documents in question. The attorneys'-eyes-only condition simply does 

not limit disclosure to persons whose knowledge of the confidential 

communication is not material to the purpose of the privilege. To the contrary, it 

allows one kind of critical disclosure--to opposing counsel in litigation--that the 

privilege was designed to prevent. 

In re Perrigo Co., 128 F.3d 430, 436 (6th Cir. 1997); AFL-CIO, 333 F.3d at 177-78 

(holding that disclosure of a political party’s internal confidential materials placing the party at a 

disadvantage to their political opponents and seriously interferes with the internal operations of 
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the party). Once this injury occurs it cannot be remedied by a subsequent order of the Court of 

Appeals. Lott, 424 F.3d at 451-52.7

Furthermore, the burden of establishing irreparable harm in the First Amendment context 

is light. Elrod v. Burns, 427 U.S. 347, 373 (1976); Platt v. Bd. of Comm'rs on Grievs. & 

Discipline of the Ohio Supreme Court, 769 F.3d 447, 454 (6th Cir. 2014) (adopting the Elrod

framework) (“The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable injury.”). Accordingly, this factor favors granting the stay 

pending the expedited appeal or petition for mandamus to prevent the RNC, NRCC, and Kincaid 

from experiencing irreparable harm, and to permit the RNC, NRCC, and Kincaid to pursue a 

meaningful appeal, this Court should stay its order pending the expedited appeal or petition for 

mandamus. Lott, 424 F.3d at 452. 

III. THE PROSPECT THAT PLAINTIFFS WILL BE HARMED IF A STAY IS 

GRANTED IS MINIMAL BECAUSE RESPONDENTS SEEK AN 

EXPEDITED APPEAL OR PETITION FOR MANDAMUS. 

Granting the stay will impose, at most, minimal harm to Plaintiffs. Dispositive motions 

are due January 8, 2019 and trial is set for March 4, 2019.8See Calendar Order at 2-3 (Page ID 

7

 Additionally, the protective order at issue in Perry contained an attorneys’ eyes only limitation. 

See Perry v. Schwarzenegger, No. 09-02292 (N.D. Cal. Dec. 3, 2009 and Jan. 7, 2010) (ECF 

273-1, 361, ¶ 7.3.). The Ninth Circuit was well aware of this provision. See, e.g., Perry v. 

Schwarzenegger, No. 09-17241 at 12, 29, 33-34 (9th Cir. Nov. 23, 2009) (Doc. ID# 7139901) 

(appellees repeatedly referencing the protective order that the parties were negotiating under 

orders from the magistrate judge, including an attorneys’ eyes only provision). Still, the Court 

disregarded the protective order and upheld the privilege. Perry, 591 F.3d at 1163-65 (stating 

that the protective order could ameliorate the threatened chill but could not eliminate it and 

therefore the Proposition 8 proponents satisfied the light burden).

8

 Because intent is an element of Plaintiffs’ claims, summary judgment for Plaintiffs is unlikely. 

See, e.g., Hunt v. Cromartie, 526 U.S. 541, 549, 553 (1999) (stating that legislative intent in 

redistricting cases is a factual question and that summary judgment is inappropriate where 

evidence is susceptible to multiple interpretations and thus summary judgment is unlikely). 
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355-56). Although it is true a stay could cause a delay, the Sixth Circuit has frequently granted 

expedited appeals and issued expedited decisions in cases involving the First Amendment and 

elections. Frequently in these cases, the Sixth Circuit and other circuits have acted with alacrity. 

League of Women Voters of Michigan, et al. v. Johnson, et al., No. 18-2382 (6th Cir. Dec. 20, 

2018) (granting motion to expedite and issuing opinion and order within 17 days from notice of 

appeal); See also, e.g., Obama for Am. v. Husted, No. 12-4055, 12-4076 (6th Cir. Sept. 10, 2012) 

(appeal docketed), 697 F.3d 423 (6th Cir. Oct. 5, 2012) (issuing opinion and order 26 days after 

notice of appeal filed); League of Women Voters of Michigan, et al. v. Johnson, et al., No. 18-

1437 (6th Cir. April 26, 2018) (Dkt. No. 8-1) (granting Proposed Congressional Intervenors’ 

consented motion to expedite); See League of Women Voters, et al. v. Johnson, No. 18-1946 (6th 

Cir. Aug. 28, 2018) (granting Proposed Legislative Intervenors’ motion to expedite); Martins v. 

Pidot, 663 Fed. Appx. 14 (2d Cir. 2016) (expediting appeal in an election law case where the 

notice of appeal was filed on August 30, 2016, briefs were filed on September 1, September 8, 

2016, and September 12, 2016, the Second Circuit heard oral argument on September 14, 2016 

and issued its written opinion on September 16, 2016); League of Women Voters of N.C. v. 

North Carolina, 769 F.3d 224, 235 (4th Cir. 2014) (expediting appeal of an election law case 

where the district court issued its opinion on August 8, 2014, then the appellate court heard oral 

argument on September 25, 2014 and the appellate court issued its opinion on October 1, 2014); 

Feldman v. Arizona Sec'y of State, 840 F.3d 1057, 1065-66 (9th Cir. 2016) (granting motion to 

expedite where the appeal was docketed on September 23, 2016, parties were ordered to file 

simultaneous briefs on October 17, oral argument was heard on October 19, and the court issued 

its opinion on October 28, 2016). 
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Additionally, any harm brought upon Plaintiffs is self-inflicted. Plaintiffs filed their 

lawsuit more than six years after the Ohio Congressional maps were passed into law. Surely the 

dilatory nature of Plaintiffs’ claim should weigh, to some extent, against their claims of 

irreparable harm. 

Accordingly, Plaintiffs’ only possible harm is delay, but this harm is minimized through 

use of the expedited appeal process. Accordingly, this factor weighs in favor of granting the stay. 

IV. A STAY IS IN THE PUBLIC’S INTEREST. 

The public interest weighs in favor of a stay. This is because the public and the 

marketplace of ideas suffer from chilled political participation. Buckley, 424 U.S. at 71; Virginia 

v. Hicks, 539 U.S. 113, 119 (2003) (noting that society is harmed from having an uninhibited 

marketplace of ideas when organizations and individuals abstain from speech). Disclosure to 

Plaintiffs’ counsel will cause self-censorship and reluctance to provide full and frank discussions 

concerning the formulation of strategies and messages. Winkelman Aff. ¶¶ 13-14, 16, 20-21; 

Oldham Aff. ¶¶ 11-13, 17-18; Kincaid Aff. ¶¶ 17-19, 21-22, 26-27. This adversely impacts the 

inner-workings of the association. Tashjian v. Republican Party, 479 U.S. 208, 224 (1986); 

Ripon Soc.’y v. Nat’l Republican Party, 525 F.2d 567, 585 (D.C. Cir. 1975). Accordingly, the 

public interest lies in—for now—staying this Court’s order and protecting Respondents’ First 

Amendment associational communications. Suster v. Marshall, 149 F.3d 523, 533 (6th Cir. 

1998) (“[T]here is no public interest in enforcing a law that 'curtails debate and discussion' 

regarding issues of political import.”) (quoting Citizens Against Rent Control/Coalition for Fair 

Housing v. City of Berkeley, Cal., 454 U.S. 290, 299 (1981)). 

Accordingly, this factor weighs in favor of granting the stay. 
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CONCLUSION 

For the aforementioned reasons, the order should be stayed pending expedited appeal or 

petition for mandamus. 

Respectfully submitted, 

/s/ Pramila A. Kamath 

Pramila A. Kamath (0085114) 

Bricker & Eckler LLP 

201 E. Fifth Street, Suite 1110 

Cincinnati, Ohio 45202 

Telephone: 513-870-6700 

Facsimile: 513-870-6699 

pkamath@bricker.com 

and

/s/ Shawn T. Sheehy 

Shawn Sheehy pro hac motion pending 

Phillip M. Gordon pro hac motion pending 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Phone: (540) 341-8808 

Fax: (540) 341-8809 

ssheehy@hvjt.law

pgordon@hvjt.law

Counsel for Non-Party Respondents 

Republican National Committee, 

National Republican Congressional Committee, and 

Adam Kincaid 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing has been filed through the CM/ECF system which 

instantaneously sent a Notice of Electronic Filing (NEF) to all counsel required to be served.

/s/ Pramila A. Kamath 

Pramila A. Kamath