IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

OHIO A. PHILIP RANDOLPH INSTITUTE, 

et al.

Plaintiffs,

v. 

LARRY HOUSEHOLDER, Speaker of the 

Ohio House of Representatives, et al.

Defendants.

Case No. 1:18-cv-357

Judge Timothy S. Black 

Judge Karen Nelson Moore 

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

 

PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANTS’ AND

INTERVENORS’ EVIDENTIARY OBJECTIONS

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Table of Contents

I. The Legal Standard............................................................................................................. 1

II. Defendants’ and Intervenors’ Hearsay Objections Are Baseless ....................................... 1

A. Defendants and Intervenors waived their hearsay objections by failing to 

comply with the Court’s express directive to specify the basis for those 

objections before trial. ............................................................................................ 1

B. The hearsay objections to Plaintiffs’ intent evidence should be overruled, 

including evidence of the intent of the national Republicans................................. 3

C. Plaintiffs’ exhibits are admissible pursuant to Rule 801(d)(2). .............................. 7

1. The statements made by Kincaid are admissible for their truth as 

agent admissions under Rule 801(d)(2)(D)................................................. 7

2. The statements made by Kincaid, Whatman, and Hofeller are 

admissible for their truth as co-conspirator admissions under Rule 

801(d)(2)(E). ............................................................................................... 8

3. Exhibits in the possession of a party, their agents, or coconspirators that were acted upon constitute adopted admissions 

under Rule 801(d)(2)(B). ............................................................................ 9

D. These principles, as applied, demonstrate why Defendants’ hearsay 

objections should be overruled. .............................................................................. 9

1. The hearsay objection to Trial Exhibit P393 (“Please Keep This 

Secret”) should be overruled....................................................................... 9

2. The hearsay objection to Trial Exhibit P394 (“Dog Meat Voting 

Territory”) should be overruled. ............................................................... 11

3. The hearsay objection to Trial Exhibit P407 (“Lock Down 12 

Republican Seats”) should be overruled................................................... 13

4. The hearsay objections to spreadsheets containing partisan 

scorings should be overruled. ................................................................... 14

III. Defendants’ Authenticity and Foundation Objections Are Baseless................................ 16

A. Defendants offer nothing to rebut the presumption that trial exhibits

produced in this litigation are authentic, and their objections to the 

contrary should be overruled. ............................................................................... 16

B. Metadata establishes the authenticity and foundation for many of 

Plaintiffs’ exhibits................................................................................................. 20

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1. Metadata can be used to authenticate a document even in the 

absence of extrinsic evidence (e.g., witness testimony). .......................... 21

2. For e-mails and documents produced in native format, metadata 

can provide both authentication and foundation....................................... 23

C. Witness testimony is not required to provide foundation for all of 

Plaintiffs’ exhibits................................................................................................. 24

IV. The Objections to the “Franklin County Sinkhole” Spreadsheets Should Be 

Overruled. ......................................................................................................................... 26

A. The authenticity and foundation objections to Trial Exhibit P077 should be 

overruled. .............................................................................................................. 26

1. No objection has been lodged against the authenticity and 

foundation of attachment 3 to P393—waiving any such objection 

to P077 as well.......................................................................................... 26

2. Adam Kincaid’s deposition testimony confirms his authorship of 

P077 and carefully details its content. ...................................................... 27

3. The transmission of the spreadsheet among Ohio and national 

Republican map drawers with the words “Franklin County 

Sinkhole” at the top of the document has been clearly established. ......... 28

4. Adam Kincaid’s uncertainty regarding the file name of P077 does 

not provide a basis for an authentication or foundation objection............ 30

5. Mark Braden’s testimony does not provide a basis for an 

authenticity or foundation objection. ........................................................ 31

B. The hearsay objections to Trial Exhibits P077 and P393 should be 

overruled. .............................................................................................................. 32

1. P077 and attachment 3 to P393 are admissible to establish intent. .......... 32

2. P077 and P393 are also admissible for the truth under Rule 

801(d)(2)(B) & (D). .................................................................................. 33

3. P077 and P393 are admissible for the truth pursuant to Rule 

803(6)........................................................................................................ 35

V. Defendants’ Objections to Dr. David Niven’s Testimony Should be Overruled. ............ 35

A. Dr. Niven’s census tract analysis.......................................................................... 35

1. Census tracts are the appropriate unit for this study. ................................ 35

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2. Dr. Niven employed the research protocols of his profession in 

examining the pattern of division. ............................................................ 36

B. Dr. Niven’s Principal Study.................................................................................. 37

VI. Defendants’ Objections to Dr. Wendy K. Tam Cho’s Testimony Should be 

Overruled. ......................................................................................................................... 38

VII. Conclusion ........................................................................................................................ 40

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I. The Legal Standard

In a nonjury trial, district courts enjoy broad authority to admit and consider evidence in 

rendering a judgment. A district court “can commit reversible error by excluding evidence but it 

is almost impossible for it to do so by admitting evidence.” 11 Charles A. Wright & Arthur R. 

Miller, Federal Practice and Procedure Civ. § 2885 (3d ed. Nov. 2018). On appeal, a “party who 

seeks a reversal on the basis of the erroneous admission of evidence in a bench trial has a heavy 

burden.” Nw. Nat’l Cas. Co. v. Glob. Moving & Storage, Inc., 533 F.2d 320, 324 (6th Cir. 

1976). Even where evidence is admitted over an objection, a district court does not commit 

reversible error “unless all of the competent evidence is insufficient to support the judgment 

appealed from or unless it affirmatively appears from the record that the incompetent evidence 

complained of was relied upon by the trial court and induced the court to make an essential 

finding which would not otherwise have been made.” Caldwell v. Craighead, 432 F.2d 213, 

219-20. (6th Cir. 1970) (citations omitted, emphasis added), cert denied, 402 U.S. 953 (1971). 

II. Defendants’ and Intervenors’ Hearsay Objections Are Baseless

A. Defendants and Intervenors waived their hearsay objections by failing to 

comply with the Court’s express directive to specify the basis for those 

objections before trial.

Defendants and Intervenors (together, “Defendants”) failed to comply with the Court’s 

February 11, 2019 Order to specify the bases of their hearsay objections. As a result, they 

waived their hearsay objections. 

On February 11, 2019, the Court directed (1) Plaintiffs to provide an updated exhibit list 

to Defendants and by February 15, 2019; (2) Defendants are to review Plaintiffs’ revised exhibit 

list and respond with their objections, “including an explanation of the basis for each objection,” 

by February 21, 2019; (3) Plaintiffs to respond to Defendants’ objections by February 25, 2019; 

and (4) the parties to meet and confer in a good faith attempt to resolve any outstanding 

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objections immediately thereafter. See Pretrial Conference Tr., ECF No. 221 at 82:9-85:7; 

Notation Order (Feb. 20, 2019) (directing Defendants to “respond with their objections[—

]including an explanation of the basis for each objection”) (emphasis added). The Court 

explained, “I need you to get to work on your specific objections to the specific exhibits, not ‘I 

object based on authenticity, foundation and hearsay.’ Those objections are not acceptable.” 

Pretrial Conference Tr., ECF No. 221 at 78:4-7. 

Pursuant to the Court’s February 11, 2019 Order, Plaintiffs provided Defendants with a 

revised exhibit list on February 15, 2019. See Goldstein Decl. ¶ 3, Ex. A. On February 21, 

2019, Defendants jointly provided Plaintiffs with the bases for their authentication and 

foundation objections, but provided no basis for their 137 hearsay objections. See Goldstein 

Decl. ¶ 4, Ex. B.

Defendants continued to refuse to specify the bases of their objections after Plaintiffs 

alerted them to their noncompliance on February 22, 2019. See Goldstein Decl. ¶¶ 5-6, Ex. C. 

Despite Defendants’ noncompliance with the Court’s Order, on February 25, 2019, Plaintiffs 

provided Defendants with a good faith articulation of the specifics of their responses to the still 

boilerplate hearsay objections. See Goldstein Decl. ¶ 7, Ex. D.

Defendants’ hearsay objections should be stricken. They have engaged in the very 

conduct that the Court described as “not acceptable.” See Pretrial Conference Tr., ECF No. 221

at 78:4-7. Defendants left Plaintiffs in the dark about the bases of their boilerplate hearsay 

objections for months, only now explaining what they seek to exclude after Plaintiffs finished 

presenting their case at trial and completed their opening post-trial brief.

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B. The hearsay objections to Plaintiffs’ intent evidence should be overruled, 

including evidence of the intent of the national Republicans.

Defendants raise numerous hearsay objections to Plaintiffs’ evidence of partisan intent. 

These objections are misplaced.1 In most instances, such evidence is not offered to establish that 

the statements contained therein are true. They are offered to establish what the Ohio 

Republican map drawers thought to be true or what they sought to achieve. See Fed. R. Evid. 

801(c)(2); United States v. Quinones, 511 F.3d 289, 312 (2d Cir. 2007) (“[T]he mere utterance of 

a statement, without regard to its truth, may circumstantially evidence the state of mind of the 

declarant, and, as such, does not constitute hearsay.”) (internal quotation marks and citations 

omitted).

2

 In other cases, if the evidence is used for its truth, it falls into another hearsay carveout such as a statement by a party opponent (or its agent or co-conspirator), Fed. R. Evid. 

801(d)(2), or a statement describing the declarant’s then-existing state of mind, Fed. R. Evid. 

803(3).

Defendants contend that the intent of the national Republicans is “largely irrelevant.” See

Joint Evidence Br., ECF No. 254 at 24, 26. Putting aside that their concerns about such intent 

evidence really goes to its weight, not its admissibility (i.e., they concede that national 

Republicans’ intent has some relevance), the fact is that they are wrong.

 1 Plaintiffs specify on the accompanying spreadsheet, filed pursuant to this Court’s March 14, 

2019 Order, ECF No. 250, articulating with specificity the exhibits and portions of testimony to 

which the points set forth in this brief apply. The exhibits discussed in this brief are exemplary 

and illustrative; they are not intended to be exhaustive. 2 Defendants argue at length that Plaintiffs cannot rely on certain evidence for the non-hearsay 

purpose of showing its effect on the listener. See Joint Evidence Br., ECF No. 254 at 19-29. As 

discussed below, certain of Plaintiffs’ evidence fits squarely within the effect-on-the-listener 

doctrine. Defendants, however, ignore the many other non-hearsay uses of evidence, including 

to circumstantially demonstrate the declarants’ state of mind. See id.; Ira Green, Inc. v. Military 

Sales & Serv. Co., 775 F.3d 12, 19 (1st Cir. 2014) (“[A]n out-of-court statement is not hearsay if 

it is relevant regardless of its truth (say, to show state of mind).”) (citation omitted). 

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As the Court has noted, “[t]he ‘state government’ would not be excused from potential 

constitutional violations simply because it asked the national Republicans to take care of the 

heavy lifting.” Order, ECF No. 188 at 13 (denying Adam Kincaid’s request for a protective 

order). The evidence at trial demonstrated that in 2011 national Republicans were engaged in

both the strategic decision-making and the micromanaging of Ohio’s map drawing process. The 

intent of the national Republican map drawers—Tom Whatman, Adam Kincaid, Tom Hofeller, 

and Mark Braden—is therefore highly relevant to Plaintiffs’ claims. Cf. id.; Order, ECF No. 128 

(the “December 21 Order”) (granting Plaintiffs’ motion to compel and rejecting national 

Republicans’ assertion of the First Amendment privilege); Ohio A. Philip Randolph Inst. v. RNC, 

No. 18-4258 (6th Cir. Jan. 18, 2019) (ECF No. 31-2). Defendants’ hearsay objections based on 

the strained contention that national Republicans’ intent is “largely irrelevant” should be 

overruled.

Boehner, Whatman, and Kincaid. On September 11, 2011, just days before the passage 

of H.B. 319, President of the Ohio Senate Tom Niehaus wrote to Whatman, the Executive 

Director of Team Boehner, that he was “committed to ending up with a map that Speaker 

Boehner fully supports.” Plaintiffs’ Proposed Findings of Fact (“PFOF”), ECF No. 251-1, ¶ 169. 

In living up to this commitment, Ohio legislative staffers took directions from and collaborated 

with Republican operatives based in Washington, D.C. See, e.g., PFOF ¶¶ 10-52, 122, 151, 170-

78, 181, 184-94, 195-96. 

For example, Whatman was the first to conceive of the idea to create a new district in 

Franklin County, PFOF ¶ 122, which became known as the Franklin County Sinkhole and 

provided the central architecture of the new map, see PFOF ¶ 151 (quoting Kincaid’s deposition: 

“[t]he architecture of [the] new map is one that creates a new Democrat seat in Franklin 

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County”). Defendants’ objections to the relevance of national Republican intent cannot stand 

given that a national Republican operative designed the basic architecture of the challenged plan. 

Moreover, on the same day that President Niehaus pledged his commitment to Speaker 

Boehner on redistricting, Ray DiRossi, one of the two primary Ohio legislative map drawers, 

exchanged a series of emails with Whatman regarding proposed changes to the map. See PFOF 

¶¶ 170-78 (regarding proposed changes to Clark and Mercer Counties). In addition, between 

September 11 and 12, 2011, (a) DiRossi ran shifts in political scorings of less than one 

percentage point past Whatman, PFOF ¶¶ 184-94; (b) DiRossi ensured President Niehaus that 

“Whatman signed off” on changes to the map, PFOF ¶ 181; and (c) Whatman emailed DiRossi, 

Kincaid, and Mann requesting that the Timken headquarters be moved into the 16th District to 

benefit a Republican incumbent, PFOF ¶¶ 195-196. 

In response to Whatman’s Timken request, Adam Kincaid responded at 9:36 p.m., 

“Yeah, sure, no problem. Ray/Heather, do you want me to do it and send the file over, or will 

y’all do it?” PFOF ¶ 197. To which DiRossi responded minutes later, “You do and get 

equivalence file to us asap.” PFOF ¶ 198 (emphasis added). Kincaid did as DiRossi instructed 

and sent the updated map files at 10:46 p.m. that evening. PFOF ¶ 202. This last-minute change 

is one of many examples in which Kincaid had the pen in drawing Ohio’s congressional map. 

See also PFOF ¶ 126 (Kincaid sending map files to DiRossi and Mann); PFOF ¶ 128 (same); 

PFOF ¶ 146 (Kincaid describing “an iteration” he created of his earlier maps); PFOF ¶ 149 

(Kincaid acknowledging that he created at least two more proposed maps last modified on 

September 10, 2011); PFOF ¶ 119 (Kincaid describing a map labeled “4-way split,” which he 

sent to DiRossi, Mann, and Whatman on September 3, 2011, see Trial Ex. P119 at 

LWVOH_00018302); Trial Ex. P394 at REV-00023234 (Hofeller emailing Braden edits to a 

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map, stating, “Adam is changing the NE . . . You are running into some ‘version’ control. 

Maybe Adam should have the controlling map”). 

Hofeller and Braden were similarly involved in the strategic decision-making and 

micromanaging of Ohio’s map drawing in 2011. Indeed, Braden often served as a conduit 

between the Ohio General Assembly (his client at the time), PFOF ¶ 37, and other national 

Republicans. For example, after receiving the “Franklin County Sinkhole” spreadsheet from 

Mann on September 3, 2011, Braden forwarded the spreadsheet on September 6, 2011 to 

Hofeller, with the admonishment to “please keep this secret.” PFOF ¶¶ 138-39. Two days later, 

Hofeller wrote to Braden, “Mark: Here is the DBF Plan File. I put Hamilton back the way it was 

except for 5 persons needed to reunite three cities. I gave the plan to Adam as directed.” PFOF 

¶¶ 140-41. Thus, the emails make clear that Hofeller was drawing maps (or directing Kincaid to 

do so) and transmitting the results back to Braden. 

Despite relatively few changes affecting the map between H.B. 319 and H.B. 369, PFOF 

¶¶ 269-71, national Republicans remained involved through the passage of H.B. 369. See PFOF

¶ 267, Trial Ex. P398 (Hofeller emailing on December 14, 2011 that “Ohio is going to pass a 

new congressional compromise map with very little change for us”); PFOF ¶ 267, Trial Ex. P399 

(Hofeller emailing on December 14, 2011 that “it looks unlikely that the Democrats will be able 

to gather sufficient signatures to delay the implementation of the [H.B. 369] map”); PFOF ¶ 160, 

Trial Exs. P497, P498, P499 (Kincaid created a changes sheet reflecting the partisan scoring of 

H.B. 369 as passed and emailed them to Hofeller on December 14, 2011); see also Plaintiffs’ 

Proposed Rebuttal Findings of Facts (“Rebuttal PFOF”) ¶ 7 (citing Trial Ex. P409, in which 

Mann emails Kincaid “the zipped shape files and equivalency file for HB 369 as Passed,” and 

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Kincaid forwarded it to Hofeller, noting “They made a couple tweaks. Final, final Ohio map is 

attached”).

National Republicans’ intent is therefore relevant from the beginning of their 

involvement in early 2011, PFOF ¶ 167, to the moment their involvement culminated in the 

passage of H.B. 369. In his deposition, Kincaid repeatedly (and aptly) described the map 

drawing process as a “collaborative” effort between national Republicans and Ohio map drawers. 

PFOF ¶ 68. It was.

C. Plaintiffs’ exhibits are admissible pursuant to Rule 801(d)(2).

1. The statements made by Kincaid are admissible for their truth as 

agent admissions under Rule 801(d)(2)(D).

In 2011, Kincaid worked as an agent of Representatives Chabot, Latta, Jordan, Johnson, 

Turner, Stivers, and Gibbs (who were members of Congress and the NRCC at the time). 

Kincaid’s statements therefore satisfy the hearsay carve-out for agents of party opponents. Fed. 

R. Evid. 801(d)(2)(D). 

The mission of the NRCC is to serve the political needs of the Republican members of 

Congress. See Kincaid Suppl. Aff., ECF No. 165-1, ¶ 10. In his role as the NRCC’s National 

Redistricting Coordinator, Kincaid “provide[d] beneficial assistance to congressional members,” 

which included “analyses of draft redistricting maps and final redistricting maps.” Id. ¶ 14. 

Indeed, Kincaid “had a significant number of conversations with Ohio congressional . . . 

members in 2011.” Id. ¶ 19. Kincaid has testified that he met in-person with at least five of the 

Intervenors in 2011 to discuss how redistricting would affect the contours of their districts. See

Rebuttal PFOF ¶¶ 2-3. In the ordinary course of his duties at the NRCC, Kincaid created 

district-specific spreadsheets consisting of partisan scorings for each of these Intervenors. 

Rebuttal PFOF ¶¶ 1, 4-5. Given Kincaid’s work for the Congressmen, Kincaid qualifies as an 

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agent of party opponents Representatives Chabot, Latta, Jordan, Johnson, Turner, Stivers, and 

Gibbs. 

2. The statements made by Kincaid, Whatman, and Hofeller are 

admissible for their truth as co-conspirator admissions under Rule 

801(d)(2)(E).

Every statement made by Kincaid, Whatman, and Hofeller is admissible for its truth 

under Rule 801(d)(2)(E), which provides that out-of-court statements offered by an opposing 

party’s co-conspirator are not hearsay. See Fed. R. Evid. 801(d)(2)(E). A co-conspirator’s 

statement is admissible as non-hearsay if Plaintiffs “show by a preponderance of the evidence 

that: (1) a conspiracy existed, (2) the defendant against whom the hearsay is offered was a 

member of the conspiracy, and (3) that the statements were made during the course and in 

furtherance of the conspiracy.” DRFP L.L.C. v. Republica Bolivariana de Venezuela, No. 2:04-

cv-0793, 2016 WL 3996719, at *30 (S.D. Ohio July 22, 2016) (quoting United States v. Benson, 

591 F.3d 491, 501-02 (6th Cir. 2010)), aff’d, 706 F. App’x 269 (6th Cir. 2017).

Importantly, a conspiracy can exist for purposes of Rule 801(d)(2)(E) merely by 

establishing that there was “teamwork” toward achieving a common objective. No criminal 

intent is required. See 30B Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and

Procedure Evid. § 6778 (2018 ed.) (“Rule 801(d)(2)(E) uses the familiar term ‘conspiracy,’ but it 

is intended to reach more broadly than criminal conspiracy law. . . . Rule 801(d)(2)(E) . . . 

addresses teamwork more generally.”). All that is required is some evidence of teamwork 

between the declarant and party separate from the document itself. See Fed. R. Evid. 801(d)(2) 

(“The statement must be considered but does not by itself establish . . . the existence of the 

conspiracy or participation in it under (E).”). 

Moreover, the declarant’s statements may be admissible even when the party opponent 

does not know the declarant’s identity. United States v. Christopher, 923 F.2d 1545, 1551 n.3 

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(11th Cir. 1991) (“statements of a declarant [may] be admissible under rule 801(d)(2)(E) where, 

although the witness did not know the precise identity of the declarant, it was clear from the 

testimony and context of the out-of-court statements” that the elements of Rule 801(d)(2)(E) are 

met).

3. Exhibits in the possession of a party, their agents, or co-conspirators 

that were acted upon constitute adopted admissions under Rule 

801(d)(2)(B).

“Just as silence in the face of an accusation may constitute an admission to its truth, 

possession of a written statement becomes an adoption of its contents.” United States v. Marino, 

658 F.2d 1120, 1125 (6th Cir. 1981); see also United States v. Paulino, 13 F.3d 20, 24 (1st Cir. 

1994) (“[C]ourts frequently have construed possession of a written statement as an adoption of 

what its contents reveal.”). “Such adoptive admissions are not hearsay and are properly admitted 

into evidence.” United States v. Merritt, Nos. 94-4149, 96-4177, 96-4196, 1998 WL 196614, at 

*1 (4th Cir. 1998). Thus, if a party (or its agent or co-conspirator) possesses a document and 

additional circumstances tie that individual to the document then it is admissible as an adopted 

admission. See id. (“So long as the surrounding circumstances tie the possessor and the 

document together in some meaningful way, the possessor may be found to have adopted the 

writing and embraced its contents.”) (quoting Paulino, 13 F.3d at 24).

D. These principles, as applied, demonstrate why Defendants’ hearsay 

objections should be overruled. 

1. The hearsay objection to Trial Exhibit P393 (“Please Keep This 

Secret”) should be overruled.

The “dog meat voting territory” conversation between Braden and Hofeller began with an 

email from Braden sent to Hofeller on September 6, 2011. Trial Ex. P393; see PFOF ¶¶ 139-

143. In this email, Braden transmitted the “Franklin County Sinkhole” spreadsheet with the 

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admonition “please keep this secret.”3 Defendants’ sole objection to Trial Exhibit P393 is 

hearsay.

First, Braden’s admonition is not hearsay. See United States v. Diaz, 670 F.3d 332, 346 

(1st Cir. 2012) (“Out-of-court statements providing directions from one individual to another do 

not constitute hearsay.”) (citation omitted). His “command is not hearsay because it is not an 

assertion of fact.” United States v. White, 639 F.3d 331, 337 (7th Cir. 2011). Braden’s 

admonishment supports the showing that the map drawers believed that their process ought to be 

shielded from public light.

Second, Braden’s statements are those of the agent of a party opponent and therefore are 

admissible under Rule 801(d)(2)(D). Defendants do not dispute that point, see Joint Evidence 

Br., ECF No. 254 at 32, and for good reason. In Ohio in 2011, Braden communicated with and 

provided strategic advice to Speaker Batchelder and President Niehaus’ map drawers, which 

included DiRossi and Mann. Trial Exhibit P119 represents Braden’s communications with 

Mann regarding map proposals, as it shows Mann sending Braden a draft map, and Braden 

responding with requests for more information regarding the map. See Trial Ex. P119 at 

LWVOH_00018307-08. Similarly, Braden admitted at his deposition to communicating with 

DiRossi in 2011 regarding draft maps. Braden Dep., ECF No. 230-7 at 20:10-24. He also 

admitted to speaking with both the Speaker of the House and the President of the Senate about 

drawing congressional maps in 2011. Id. at 19:3-17. Significantly, Braden visited the bunker to 

view draft maps and associated political data. See PFOF ¶ 88. 

 3 Trial Exhibit P393 has several attachments (all of which are included in P393 following the 

cover email). The hearsay objection to the third attachment—the “Franklin County Sinkhole” 

spreadsheet—is addressed in Part IV, infra. Here, Plaintiffs address the hearsay objection to 

Braden’s cover email. 

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2. The hearsay objection to Trial Exhibit P394 (“Dog Meat Voting 

Territory”) should be overruled.

Trial Exhibit P394 is the September 8, 2011 email exchange (two days after the exchange 

in P393) between Hofeller and Braden regarding revisions to one of the last draft maps before 

H.B. 319 was introduced. This is the email where Hofeller writes to Braden that “[t]he area 

Adam has on his version [of the map] included Grandview Heights and some more of the 

‘downtown’ area, which I took out of the map I sent—as it was ‘dog meat’ voting territory.” 

Trial Ex. P394 at 2; PFOF ¶ 142. Plaintiffs offer the document to establish partisan intent. See

PFOF ¶¶ 141-144.

Defendants object to P394 as hearsay; they argue that Plaintiffs offer the exhibit “to 

prove that Democratic voters were moved out of the 12th and 15th Congressional Districts and 

into the 3rd Congressional District in order to ensure a 12-4 map.” Joint Evidence Br., ECF No. 

254 at 22-23. Plaintiffs make no such contention, in PFOF ¶ 143 or elsewhere.4

 Indeed, 

Plaintiffs do not ask the Court to decide whether Grandview Heights is in fact home to primarily 

Democratic voters, much less whether it is actually “dog meat” under some definition of that 

term. See PFOF ¶ 142 (noting that “Hofeller described his revisions to the map in revealing 

terms,” and quoting the “dog meat” email to demonstrate Hofeller’s intent). Plaintiffs offer this 

statement to show the state of mind of those individuals who were actively drawing Ohio’s 2011 

redistricting plan. What matters is that Hofeller thought the territory was “dog meat.” Further, 

 4 Defendants later concede that Plaintiffs rely on P394 “as evidence of partisan intent.” Joint 

Trial Br., ECF No. 254 at 28. 

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Hofeller described these voting areas as undesirable to convince Braden and others to accept his 

proposed changes to the district lines.5

 

Finally, Braden’s statements in the emails are those of a party’s agent and a party’s coconspirator within Rule 801(d)(2)(D) & (E). Hofeller’s statements are admissible pursuant to 

Rule 801(d)(2)(E) because they represent the shared objective of Braden, Hofeller, and the other 

Ohio and national Republican map drawers to draw and enact a map that favors Republicans.

Lastly, Plaintiffs are compelled to respond to Defendants’ assertion that “to the extent 

Plaintiffs point to the fact that Mr. Braden was on the email chain with Mr. Hofeller referring to 

‘dog meat,’ Plaintiffs obtained no testimony from Mr. Braden or any other witness about it.” 

Joint Evidence Br., ECF No. 254 at 29. First, the contention is wrong: Plaintiffs obtained 

testimony from Adam Kincaid about the “dog meat” email chain. See PFOF ¶ 144 (Kincaid 

explained that “dog meat voting territory” “was not friendly area to Republicans.”). Second, any 

failure to obtain discovery regarding the document during the discovery period is hardly the fault 

of Plaintiffs. The Republican National Committee produced Trial Exhibit P394 from Hofeller’s 

custodial files on January 4, 2019, see Goldstein Decl. ¶ 24, well after the close of discovery and 

following drawn-out motion practice resulting from the RNC’s (erroneous) First Amendment 

privilege assertion. 

Indeed, if anyone is responsible for the lack of additional witness testimony regarding 

P394, Braden is. Based on Braden’s privilege log, it appears that Braden withheld the “dog 

meat” email chain as attorney work product. See Goldstein Decl. ¶¶ 9-11; id. Ex. E (Braden’s

privilege log included four entries describing emails between Braden and Hofeller on September 

 5 Alternatively, even assuming these statements qualify as hearsay, they are admissible as 

evidence of Hofeller’s then-existing state of mind—namely, his intent to remove Democratic 

voters from the 15th District. Fed. R. Evid. 803(3). 

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8, 2011 about redistricting in Ohio). Defendants’ argument that Plaintiffs should have obtained 

testimony from Braden about his improperly-withheld document is, at the very least, audacious.

3. The hearsay objection to Trial Exhibit P407 (“Lock Down 12 

Republican Seats”) should be overruled. 

Trial Exhibit P407 contains an early September 2011 email exchange between Whatman, 

Senate President Niehaus, Judy, and Mann. The email exchange, which contains the subject line 

“Talking Points,” encourages Republicans to support adoption of “The Map” less than a week 

before H.B. 319 was introduced in the Ohio House of Representatives. It emphasizes, among 

other things, that “[i]n losing two seats and trying to lock down 12 Republican seats it is 

unrealistic to think southwest Ohio can remain the way it is.” Trial Ex. P407 at 

LWVOH_0052431. In a subsequent email, Judy forwards Whatman’s email to Mann, writing: 

“Can u print these for WGB?”

Defendants’ only object on the basis of hearsay. Plaintiffs, however, offer P407 as 

probative evidence of Ohio Republicans’ intent to enact a map that would guarantee Republicans 

12 congressional seats, as well as their belief that an alternative 13-3 map would create fewer 

safe Republican districts. See PFOF ¶ 109 (citing P407 as evidence that Republicans coalesced 

around the idea of enacting a 12-4 map); PFOF ¶¶ 112-13 (citing P407 as evidence of 

Republicans’ desire to enact a 12-4 map); PFOF ¶ 1038 (citing P407 as evidence of Republicans’ 

belief that a 13-3 map would create less safe Republicans districts). The email may also properly 

be used to show that Whatman, Niehaus, Judy, and Mann knew or subjectively believed at that 

time that a 13-3 map would create fewer safe Republican seats than a 12-4 map. 

However, if the Court decides to consider the document for its truth, it may do so under 

the hearsay exception for “statement[s] of the declarant’s then-existing state of mind,” Fed. R. 

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Evid. Rule 803(3), to show that in September 2011, Whatman, Niehaus, Judy, and Mann were 

“trying to lock down 12 Republican seats” in Ohio. Trial Ex. P407 at LWVOH_0052431. 

The statements from Whatman are also admissible for the truth as adopted admissions by 

Judy as an agent of a party opponent pursuant to Rule 801(d)(2)(D) & (B). See Part II.C.3, 

supra; Joint Evidence Br., ECF No. 254 at 30 (conceding Judy was an agent of Defendants). As 

the face of the document makes plain, Whatman emailed the talking points to Judy, and Judy 

forwarded the talking points to Mann asking Mann, “Can u print these for WGB?” (Speaker 

Batchelder’s initials). Trial Ex. P407 at LWVOH_0052431. Judy’s request that Mann print the 

talking points for Speaker Batchelder are circumstances that indicate not only that Judy 

possessed the talking points, but that he aligned himself with the assertions therein. Far from 

denouncing the truth of the talking points, Judy considered the talking points as worthy of 

elevating to the Speaker of the Ohio General Assembly. 

Lastly, Whatman’s statements within P407 fall within the hearsay exception for 

statements by a co-conspirator. See Part II.C.2, supra; Fed. R. Evid. 801(d)(2)(E). 

4. The hearsay objections to spreadsheets containing partisan scorings 

should be overruled. 

The law does not require specifying the identity of an individual declarant to be 

admissible intent evidence. Defendants contend that certain spreadsheets relied on by Plaintiffs 

in their proposed findings are inadmissible hearsay. Joint Evidence Br., ECF No. 254 at 20, 23-

24. This contention is based largely on their unsupported claim that Plaintiffs “must first identify 

the declarant” in order to rely on these exhibits to demonstrate the Republican map drawers’ 

intent. Id. at 18-19, 23-24. Defendants’ failure to cite to a single case for this proposition is 

unsurprising, because it is not the law. All that is required is that the declarant be part of the 

group of persons engaged in Ohio’s congressional redistricting in 2011. 

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“[T]o bar hearsay from unidentified declarants [is] something the evidence rules decline 

to do.” 30B Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure Evid. 

§ 7053 (2018 ed.). This is because “[k]nowing the specific identity of the declarant will not 

make the statements more trustworthy evidence of the declarants’ . . . states of mind,” when a 

statement’s relevance depends not on the declarant’s specific identity, but on the declarant’s 

membership in a particular class—in this case, Republicans involved in the Ohio map-drawing 

process in 2011.6 Callahan v. A.E.V., Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999); see id. (“The 

relevance of their statements depends only on the fact that they were the plaintiffs’ customers, 

not their particular identities.”); Sleepy’s LLC v. Select Comfort Wholesale Corp., 779 F.3d 191, 

205 (2d Cir. 2015); see also Celebrity Cruises Inc. v. Essef Corp., 478 F. Supp. 2d 440, 447 

(S.D.N.Y. 2007). It is abundantly clear from the faces of the spreadsheets, their metadata, 

Defendants’ admissions, deposition testimony, and other supporting evidence that the authors 

and modifiers of these spreadsheets were members of this particular class. 

The objected-to spreadsheets unquestionably bear upon the Republican map drawers’ 

contemporaneous intent and are therefore not hearsay. See Fed. R. Evid. 801(c)(2). They reflect 

how the map drawers viewed the partisan leanings of districts as drawn in various map proposals 

based on political index scorings, regardless of whether those scorings were objectively “true”. 

They evidence the map drawers’ subjective understandings of the district-specific “differences” 

between competing map proposals, irrespective of whether those deltas were, in fact, true; and 

they go to the map drawers’ states of mind—demonstrating their intense focus on calculating and 

assessing the partisan makeup of each district—during their mission to draw a 12-4 map. These 

 6 And as detailed in the accompanying spreadsheet, Plaintiffs have set forth ample evidence 

identifying the authors and modifiers of the spreadsheets to which Defendants and Intervenors 

object, including Trial Exhibits P041, P042, P077, P078, P135, and P329. 

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are the purposes for which Plaintiffs rely on these spreadsheets, see, e.g., PFOF ¶¶ 95, 111, 117-

119, 124, 149-150, 160, 208, 219, 286, 1037-1038, not for the truth of any assertions made 

therein. They are therefore not hearsay under Rule 801(c)(2).

The spreadsheets are admissible for the truth under Rule 801(d)(2)(B). In the alternative, 

Plaintiffs are able to rely on these spreadsheets for their truth as an adopted admission. Fed. R. 

Evid. 801(d)(2)(B). See Part II.C.3, supra. It is undisputed that Defendants’ agents possessed 

and produced a number of spreadsheets in this case, including Trial Exhibits P041 and P042 

(Mann), P077 and P078 (Braden), and P135 (DiRossi). See Joint Evidence Br., ECF No. 254 at 

30 (conceding Mann, Braden, and DiRossi were agents of the Defendants). Additionally, as 

detailed in the accompanying spreadsheet, the “surrounding circumstances” of each exhibit ties 

its possessor to the document in a meaningful way. 

III. Defendants’ Authenticity and Foundation Objections Are Baseless.

A. Defendants offer nothing to rebut the presumption that trial exhibits 

produced in this litigation are authentic, and their objections to the contrary 

should be overruled.

Following trial, Defendants continue to contest the authenticity of numerous documents 

produced in response to compulsory discovery requests in connection with this litigation. These 

unsupported objections ignore the Court’s plainly articulated views on these materials and should 

be overruled.

At the February 11, 2019 final pretrial conference, the Court made its views on the 

authenticity of documents produced in this action clear:

Judge Black: “I think the statement of the law in plaintiffs’ motion 

is accurate that a document that was produced in discovery creates 

a rebuttable inference that the document is authentic.” Pretrial 

Conference Tr., ECF No. 221 at 68:9-14.

Judge Watson: “My view is if it was produced in discovery, there 

should be no question.” Id. at 69:1-2.

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Judge Moore: “And I agree.” Id. at 69:7.

This unambiguous admonition notwithstanding, Defendants challenge the authenticity of 

seven trial exhibits produced in response to subpoenas issued by this Court to individuals who 

served in official capacities as agents of Defendants and their predecessors.7 Defendants 

challenge the authenticity of other documents, including two produced by the Republican 

National Committee in response to a subpoena in this case: Trial Exhibits P400 and P589.

As Plaintiffs have previously noted, courts in the Sixth Circuit have repeatedly held that 

documents produced in discovery—whether by a party-opponent or third-parties—are presumed 

authentic absent evidence that they are not what they purport to be. See Churches of Christ in 

Christian Union v. Evangelical Benefit Tr., No. 2:07-cv-1186, 2009 WL 2146095, at *5 (S.D. 

Ohio July 15, 2009) (“Where a document is produced in discovery, ‘there is sufficient 

circumstantial evidence to support its authenticity’ at trial.”) (quoting Denison v. Swaco 

Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991)); see also United States v. Cinergy Corp., 

495 F. Supp. 2d 909, 914 (S.D. Ind. 2007) (“[I]t is disingenuous for [a party] to object to copies 

of documents that it produced to [an opponent] pursuant discovery requests”). 

As an initial matter, the premise that the Republican National Committee is a third party, 

unrelated to Defendants or Intervenors, is inaccurate. As explained in Part II.B, supra, the 

connection between national Republicans and Defendants was close and continuous. They were 

far from unrelated parties.

 7 Specifically, authenticity objections were lodged against documents produced by Mann (P041, 

P042), DiRossi (P135), and Braden (P077, P078, P316, P318). As noted, Defendants concede 

that each of these individuals were “agents” of the Ohio General Assembly. Joint Evidence Br., 

ECF No. 254 at 30. Each exhibit is noted and discussed in the accompanying spreadsheet. 

Plaintiffs again note that counsel for Defendants also represent many of these individuals and 

that one of these individuals served as counsel for Intervenors at trial; they presumably have 

reviewed and not altered any of these documents before producing them to Plaintiffs.

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In any event, courts in the Sixth Circuit have applied the same presumption of 

authenticity to documents produced by a third party in response to a subpoena. See, e.g., Welch 

v. Bissell, No. 1:12CV3108, 2013 WL 6504679, at *4 (N.D. Ohio Dec. 11, 2013); see also 

Denison, 941 F.2d at 1423. Defendants have not cited any case to the contrary. See Joint 

Evidence Br., ECF No. 254 at 9. Instead, they cite cases in which the particular documents held 

to be presumptively authentic were produced by a party-opponent, as if those cases logically 

require that the presumption cannot apply outside those circumstances. Reading those cases, 

however, reveals that those courts recognized that the presumption applied more broadly, as 

confirmed by cases like Welch in which the presumption was applied to third-party produced 

documents.

In maintaining their authenticity objections to these exhibits, Defendants suggest that 

certain documents for which Plaintiffs failed to obtain authenticating witness testimony must be 

excluded as inauthentic. As this Court has recognized, however, the mere fact that these exhibits 

were produced in response to compulsory discovery in this matter is sufficient to establish their 

presumptive authenticity. See Pretrial Conference Tr., ECF No. 221 at 68:8-14, 69:1-2, 69:7; see 

also Churches of Christ in Christian Union, 2009 WL 2146095, at *5. As such, Plaintiffs’ 

failure to obtain additional evidence demonstrating the authenticity of these exhibits is 

immaterial. Rather, the burden falls on Defendants to put forward evidence that these exhibits 

are not what they purport to be. Welch, 2013 WL 6504679, at *4; United States v. Harvey, 117 

F.3d 1044, 1049 (7th Cir. 1997) (“Rule 901 requires only a prima facie showing of genuineness 

and leaves it to the jury to decide the true authenticity and probative value of the evidence.”)

(citations omitted); see also 5 Weinstein’s Federal Evidence § 901.02[3].

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For much the same reason, Defendants’ reliance on witnesses’ testimony failing to 

positively identify certain exhibits is insufficient to rebut the presumption that those exhibits are 

authentic. Federal Rule of Evidence 901(b) states clearly that “Testimony of a Witness with 

Knowledge” is just one of many possible ways that evidence can be authenticated. As the cases 

cited above illustrate, evidence can also be authenticated based on the circumstances of its 

production, even in the absence of corroborating testimony.

Despite Defendants’ innuendo, there is, in fact, no testimony calling into question the 

authenticity of any of the exhibits to which they object. Trial Exhibit P288 was shown to Chris 

Jankowski, former President of the RSLC, who was asked if he had ever seen it before and 

responded affirmatively: “A long time ago, yes.” Jankowski Dep., ECF No. 230-23 at 133:22-

23. He further testified that “I know that a letter like this went out,” id. at 134:2-3, and that he 

remembered its “substance” and “subject matter,” id. at 134:11-12. Ignoring Jankowski’s 

testimony corroborating the authenticity of the document, Defendants instead highlight various 

ancillary questions to which he answered that he did not remember or did not know. Joint 

Evidence Br., ECF No. 254 at 11-12. Jankowski could not remember the date the letter was sent. 

Jankowski Dep., ECF No. 230-23 at 134:3. He “couldn’t say unless [he] had the actual letter,” 

whether the final version and the draft were substantially the same; however, he clarified that he 

remembered the “substance” and “subject matter” of the letter as presented. Id. at 134:7-12. 

Finally, he could not recall the list of individuals who received the letter, although he testified 

that it was of “legislative leaders.” Id. at 134:13-18. 

Defendants similarly distort the testimony with respect to Trial Exhibit P589. This 

collection of maps, with small data tables printed on each map, was shown to Whatman, who 

testified that “I recognize them somewhat from what I produced, yes.” Whatman Dep., ECF No. 

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230-52 at 172:16-17. While Defendants cite to undesignated deposition testimony to show that 

Whatman was “not sure” what one column (% 10Gov_08Pres_R_%) meant, id. at 173:13-174:8, 

Whatman was able to confirm (in testimony that was properly designated) the meaning of the 

two other columns he was asked about, id. at 174:9-17 (% PRES_2008_R_%), id. at 175:5-20 (% 

PRES_2008_R_%). At no time did Whatman assert that the exhibit was inauthentic and none of 

his testimony suggests that possibility.8

Plaintiffs do not argue that “mere production of a document is sufficient to prove

authentication.” Joint Evidence Br., ECF No. 254 at 5 (emphasis added). Plaintiffs’ view is the 

same as that expressed by the Court at the pre-trial conference: “a document that was produced 

in discovery creates a rebuttable inference that the document is authentic.” Pretrial Conference 

Tr., ECF No. 221 at 68:8-14 (Black, J.). The absence of additional evidence cannot rebut that 

inference; only actual evidence of inauthenticity can. Defendants introduced no such evidence. 

Thus, their authenticity objections should be rejected.

B. Metadata establishes the authenticity and foundation for many of Plaintiffs’ 

exhibits.

Metadata provides further evidence of authenticity and lays foundation for many of the 

exhibits that are the subject of Defendants’ objections. Metadata is data that is created 

automatically by a computer when a document is created or saved. See generally The Sedona 

Conference, The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing 

 8 Defendants cite to additional undesignated deposition testimony that Whatman did not 

recognize handwriting on certain pages of P589. Joint Evidence Brief, ECF No. 254 at 12. The 

handwriting at issue is a notation of “#1” through “#8” at the top of certain pages. Trial Ex. 

P589 at 3-10. Whatman was asked if he had “any idea” who wrote those handwritten notations 

and “Would that be yours?” Whatman Dep., ECF No. 230-52 at 176:12-18. The fact that 

Whatman could not identify handwriting from eight page numbers is unsurprising and does not 

suggest in any way that the document itself, which was produced from Whatman’s own files and 

that he testified to recognizing, is inauthentic.

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Information & Records in the Electronics Age, 28-29 (2d ed. 2007). Metadata can establish both 

authenticity and foundation for a document by providing evidence of (among other things): the 

date the document was created, the author of the document, the custodian of the document, the 

filename of the document, and the email address of the sender or recipient of the document. See 

id. at 29.

1. Metadata can be used to authenticate a document even in the absence 

of extrinsic evidence (e.g., witness testimony).

Courts have accepted the use of metadata to overcome evidentiary objections. Under the 

Federal Rules, evidence of a document’s “distinctive characteristics,” including its “appearance, 

contents, substance, [or] internal patterns,” suffices to authenticate a document. Fed. R. 

Evid. 901(b)(4). One “way in which electronic evidence may be authenticated under Rule 

901(b)(4) is by examining the metadata for the evidence.” Lorraine v. Markel Am. Ins. Co., 241 

F.R.D. 534, 547 (D. Md. 2007). “Because metadata shows the date, time and identity of the 

creator of an electronic record, as well as all changes made to it, metadata is a distinctive 

characteristic of all electronic evidence that can be used to authenticate it under Rule 901(b)(4).” 

Id. at 547-48.

This Court recognized as much at the pretrial conference, noting first that the “[b]urden 

of proof of authentication is slight,” Pretrial Conference Tr., ECF No. 221 at 78:21-22, and the 

“[u]ltimate question of authenticity is for the jury,” id. at 78:22-23, or in the case of a bench trial, 

as here, it is for “the panel to decide,” id. at 79:2-3. The Court further explained that the 

“[p]roponent may authenticate evidence by offering evidence of the appearance, content, 

substance, internal patterns or other distinct characteristics of the item taken together with all the 

circumstances.” Id. at 78:23-79:1; see also Fed. R. Evid. 901(b)(4). Finally, the Court 

specifically addressed metadata, noting how metadata is typically sufficient to establish the 

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authenticity of e-mails and other documents, such as Excel spreadsheets. Pretrial Conference 

Tr., ECF No. 221 at 79:5-19.

When relying on metadata to authenticate documents, courts have not required extrinsic 

evidence or expert testimony for corroboration. See, e.g., Hubbard v. Jefferson Cty. Bd. of Cty.

Comm’rs, No. 16-cv-2444-JWL, 2018 WL 1626376, at *3 (D. Kan. Apr. 4, 2018). Absent actual 

evidence of tampering—not mere conclusory or speculative allegation—courts will consider 

metadata for purposes of authenticating and identifying a document. CA, Inc. v. Simple.com, 

Inc., 780 F. Supp. 2d 196, 224-25 (E.D.N.Y. 2009) (citing 5-900 Weinstein’s Federal Evidence 

§ 900.07[1][a]); cf. United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) (“The fact that 

it is possible to alter data contained in a computer is plainly insufficient to establish 

untrustworthiness.”). 

The case law cited by Plaintiffs is unrebutted by Defendants who do not cite a single case 

in their discussion on metadata. See Joint Evidence Br., ECF No. 254 at 12-14. Instead, 

Defendants mischaracterize Plaintiffs’ argument. Plaintiffs do not contend that metadata, by 

itself, provides dispositive proof of a document’s authenticity that cannot be rebutted by other 

evidence. Rather, Plaintiffs’ view is that, consistent with the cited cases, metadata can provide 

evidence sufficient to authenticate a document absent actual evidence of inauthenticity. See 

Lorraine, 241 F.R.D. at 547. Corroborating extrinsic evidence, such as witness testimony, is not 

required to establish authenticity, Hubbard, 2018 WL 1626376, at *3, and specific evidence of 

inauthenticity—not abstract or speculative assertions—is required to rebut it, CA, Inc., 780 F. 

Supp. 2d at 224-25. Having again adduced no such evidence of inauthenticity, Defendants’ 

objections must be overruled.

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2. For e-mails and documents produced in native format, metadata can 

provide both authentication and foundation.

At the Pretrial Conference this Court stated: “As to, specifically, e-mails display, header 

information, sender, recipient, date sent, subject line, such header information is typically in and 

of itself sufficient for the Court’s preliminary finding regarding authentication.” Pretrial 

Conference Tr., ECF No. 221 at 79:5-8. Once such information is established as authentic, then 

the key points for the foundation for such a document have been laid. 

Defendants have objected to one e-mail on the grounds of authenticity and foundation: 

Trial Exhibit P400. This document is an e-mail that contains metadata with header information 

indicating its sender, recipient, date and time sent, and subject line. As this Court noted, this 

information is “in and of itself sufficient for the Court’s preliminary finding regarding 

authentication,” and the objection to its authenticity should be overruled. Pretrial Conference 

Tr., ECF No. 221 at 79:5-8. Similarly, this metadata, coupled with the content of the e-mail 

itself, provides sufficient foundation (namely, the sender, date, and subject of the e-mail) for the 

admission of the e-mail into evidence. For P400, the metadata shows that Hofeller sent the email from his RNC e-mail address on October 27, 2011 at 9:27 PM with the subject line 

“Article,” and the content of the attached article includes a discussion of redistricting in general 

and in Ohio specifically, noting in particular the threat to Republicans from the Democratic 

referendum petition. See Goldstein Decl., Ex. H (“Oldham Aff.”). From this information, there 

is sufficient foundation for the exhibit’s admission.

In addition to e-mails, metadata can be used to authenticate and provide foundation for 

documents that were produced in so-called “native” format, such as an Excel spreadsheet 

produced as a “.xls” or “.xlsx” file (as opposed to a printout or image of the spreadsheet). As 

this Court noted at the pretrial conference: “a metadata summary contains a file name consistent 

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with the document’s content as a file extension and application identifying it as belonging to an 

Excel file. It typically includes a company, a date created, a last print date and a file path. In 

other words, it has the appearance, content, substance and other distinctive characteristics of 

metadata for Excel spreadsheets.” Pretrial Conference Tr., ECF No. 221 at 79:11-17.

Defendants have maintained authenticity and foundation objections to five exhibits that 

are native Excel files (Trial Exs. P041, P042, P077, P135, P316), and one other exhibit (Trial Ex. 

P318) that is a screenshot of a native file. To take one example, P135 is an Excel spreadsheet 

produced by DiRossi. For P135, metadata establishes the document’s filename (“heather Plan 

Comparison.xlsx”), the document’s creation date (November 5, 2011), the document’s last 

printed date (November 10, 2011), the document’s last modified date (November 10, 2011), and 

the name of the person to last modify the document (“raydirossi”). In fact, Defendants stipulated 

to the information contained in this metadata. Trial Ex. P615 at 3-4. This metadata provides the 

“distinctive characteristics” cited by this Court as providing sufficient authentication for the 

document’s admission, as is the case for each of the documents listed above. Similarly, the 

metadata provides ample foundation (including the author of the document, the file name of the 

document, and the date the document was created) to admit the document, especially when 

considered in conjunction with the content of the document itself.

C. Witness testimony is not required to provide foundation for all of Plaintiffs’ 

exhibits.

Defendants argue that seven of Plaintiffs’ exhibits should be excluded because “no 

witness has testified to lay an appropriate foundation for the relevance and admissibility of the 

documents.” Joint Evidence Br., ECF No. 254 at 14. They cite no case in support of the 

assertion that witness testimony is required to admit an exhibit. In fact, this is not the law.

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As an initial matter, three of the seven exhibits Defendants object to on these grounds 

(Trial Exs. P398, P401, P496) are the subject of an affidavit by the Republican National 

Committee’s designee. See Goldstein Decl. Ex. H (“Oldham Aff.”). Defendants have indicated 

that they do not object to its use in lieu of a deposition to the same effect. Goldstein Decl. Ex. I. 

For Trial Exhibit P401 (REV_00023321), the RNC’s designee attested to the date the 

document was created, its title, its file name, and the fact that the RNC possessed and produced it 

without alternation. Oldham Aff. ¶ 3. Moreover, the affidavit explains that “Dr. Hofeller, who 

was an independent contractor at the RNC, was known to have created or reviewed Redistricting 

Hot Spot memos and shared them with the RSLC and other organization.” Id. 

For Trial Exhibit P496 (REV_00023377), the affidavit confirms that the document is “a 

memo drafted by the RNC Counsel’s Office to Chairman Reince Priebus and Chief of Staff Jeff 

Larson,” and attests to both the date on the face of the memo (“September 22, 2011”) and its 

subject line (“Redistricting Status”), as well as the file name of the document. Id. ¶ 6. The 

RNC’s designee further attests that the document was produced by the RNC from files under its 

control and was not altered. Id.

For Trial Exhibit P398 (REV_00023479), the RNC’s designee attested that the document 

is “an email from Tom Hofeller to Matt Walter, Lindsay Fisher, and Jennifer Cusato” and further 

attested to who was carbon-copied and blind-copied on the e-mail, as well as the date it was sent 

(December 14, 2011) and its subject line (“Ohio Update”). Id. ¶ 7. Finally, the affidavit states 

that the document was produced by the RNC from files under its control and was not altered. Id.

For the four other exhibits that are subject to this objection, there is ample foundation for 

admission from the face of the document, even without extrinsic testimony, as explained in the 

accompanying spreadsheet. For example, P376 is an e-mail exchange between Representative 

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Renacci and James Slepian on November 13, 2011. The document itself establishes who made 

each statement in the e-mail exchange, when those statements were made, and that the context of 

the exchange was a discussion of negotiations over the Ohio congressional map. Trial Ex. P376. 

IV. The Objections to the “Franklin County Sinkhole” Spreadsheets Should Be 

Overruled.

Trial Exhibit P077 and the third attachment to P393 (bates labeled REV_00023179, 

found at page 5 of P393) are Kincaid’s Franklin County Sinkhole spreadsheet. They are 

identical documents (collectively “the Sinkhole Spreadsheet”). Plaintiffs rely on the Sinkhole 

Spreadsheet to prove the intent of the Ohio and national Republican map drawers. See PFOF 

¶¶ 125-137. The spreadsheet shows how they sought to achieve their 12-4 map goal: by relying 

on political indices to achieve what they believed to be the packing of Democrats in a new 

district that envelops Franklin County. The document has been the subject of extensive 

testimony, clearly establishing its authenticity and answering all questions as to foundation. And 

there is no basis for any objection based on hearsay.

A. The authenticity and foundation objections to Trial Exhibit P077 should be 

overruled.

1. No objection has been lodged against the authenticity and foundation 

of attachment 3 to P393—waiving any such objection to P077 as well.

Defendants raise no authentication or foundation objections to P393, which includes 

Attachment 3, the Sinkhole spreadsheet. They only object to P393 as hearsay.

9

 Defendants fully 

acknowledge that Attachment 3 to P393 is the same document as P077. See Joint Evidence 

Spreadsheet, ECF No. 254-1 at P393 (col. “Hearsay Objection”) (where Defendants describe 

 9 This is no mere oversight. Defendants initially did object to the authenticity and foundation of 

P393, along with objecting to the document as hearsay. Goldstein Decl. ¶ 5. But they withdrew 

these objections on February 21, 2019. Id.

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“[t]he attached spreadsheet (REV_00023179)” as a spreadsheet with the title “Franklin County 

Sinkhole,” and cite to P077 as the same document). The Court should therefore impute this

withdrawal of the foundation and authentication objections to P077 .

2. Adam Kincaid’s deposition testimony confirms his authorship of P077 

and carefully details its content.

Kincaid clearly testified at both of his deposition that he created P077. See PFOF ¶ 129. 

BRADEN1387—which is the bates number for P077—was put in front of Kincaid and marked 

as Deposition Exhibit 8. He testified as follows as regards that specific document:

Q: And then if we turn to what has been marked as [Deposition Exhibit] 8, which is 

BRADEN1387 do you see that?

A: Yes.

Q: And you created this; is that correct?

[Objection to form]

10

A: Yes.

Kincaid Dep. Vol. II, ECF No. 230-28 at 357:19-358:2 (emphasis added). The question and 

answer were unambiguous. Kincaid created this specific document—P077. 

Mr. Kincaid further testified regarding the process whereby he created P077 as follows:

Q: Do you recall – have you ever seen this document, Exhibit 8 [the Sinkhole 

spreadsheet], before? 

A: Yes. 

Q: Did you create it? 

A: Yes.

Q: And, again, you had the parent document that you created back in March, right? 

A: That’s right. 

Q: And then you populated it with data after that, right? 

A: Yes.

Kincaid Dep. Vol. I, ECF No. 230-27 at 153:2-12. In short, Mr. Kincaid testified both that he 

was responsible for creating the final document and the process whereby he created it. 

 10 “Form” objections at the Kincaid deposition were a term of art; they were lodged throughout 

the second session of the deposition to preserve the First Amendment privilege issue for appeal. 

See Kincaid Dep. Vol. II, ECF No. 230-28 at 253:2-12.

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Mr. Kincaid's testimony further laid the foundation for the document:

• Kincaid admitted, in a conversation where Tom Whatman was present in August 

or early September, 2011, that someone described a new Franklin County district 

as the “Franklin County sinkhole.” PFOF ¶ 129, Kincaid Dep. Vol. II, ECF No. 

230-28 at 369:9-371:8.

• Kincaid described the content of every column in the spreadsheet, explaining the 

election data at issue and what it represented. See PFOF ¶ 129. He also testified 

to how he created an Excel formula to average five of the six elections set forth on 

the spreadsheet and how that average appeared in column W of the spreadsheet.

Id.; see also Trial Ex. P318.

• Kincaid admitted that he created P077 during the course of his ordinary duties as 

the NRCC’s Redistricting Coordinator. Kincaid Dep. Vol. II, ECF No. 230-28 at 

516:2-10. 

This testimony was hardly surprising, as the metadata for P077 states that he is the spreadsheet’s 

author. See Goldstein Decl. ¶ 13. Indeed, the spreadsheet is formatted the same as Kincaid’s 

other “changes sheets.” See e.g., PFOF ¶¶ 130, 191; Kincaid Dep. Vol II, ECF No. 230-28 at 

300:2-14.

3. The transmission of the spreadsheet among Ohio and national 

Republican map drawers with the words “Franklin County Sinkhole” 

at the top of the document has been clearly established.

On September 3, 2011 Kincaid transmitted a spreadsheet with the filename “Ohio

Changes - New Idea Redraft.xls” to Heather Mann and Ray DiRossi. Trial Ex. P119, at 

LWVOH_00018303. Mann then forwarded that email and its attachments, including the 

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spreadsheet, to Braden within minutes. Id. at LWVOH_00018308. Three days later, Braden 

transmitted the email’s attachments, including the spreadsheet, to Hofeller. See Trial Ex. P393. 

Defendants dispute whether the Franklin County Spreadsheet was the spreadsheet that 

was transmitted to Mann on September 3, 2011, forwarded by Mann to Braden on that date, and 

then forwarded by Braden to Hofeller on September 6, 2011. Joint Evidence Br., ECF No. 254

at 7. The evidence firmly establishes that they are wrong. See Goldstein Decl. ¶¶ 12-32 (setting 

forth the metadata for P077 and related trial exhibits). 

First, the time stamp for P119 (the transmission email) and the metadata for P077 itself 

clearly indicates that P077 was attached to P119. See id. The metadata for P077 establishes that 

it was last modified by Adam Kincaid at 8:10 am on September 3, 2011. Goldstein Decl. ¶ 13. 

This was three minutes before Kincaid sent an Excel spreadsheet to Mann and DiRossi. Trial 

Ex. P119 at LWVOH_00018303.

Second, the filename set forth in the metadata for P077 is the same as the filename set 

forth for the thumbnail image of the attachment to P119 at LWVOH_00018303: “Ohio Changes 

- New Idea Redraft.xls.” See Goldstein Decl. ¶¶ 20, 27. 

Third, two minutes after receiving Kincaid’s email, at 8:15 a.m., Mann forwarded the 

email and all of its attachments to Braden, including “Ohio Changes - New Idea Redraft.xls.” 

See Trial Ex. P119 at LWVOH_00018308.11

Fourth, the spreadsheet that Braden transmitted to Hofeller on September 6, 2011, P393 

at REV_00023179 (“Attachment 3 to P393”), also bears the filename “Ohio Changes - New Idea 

Redraft.xls.” See Goldstein Decl. ¶ 27. And Braden’s transmittal email, P393 at 

 11 The files attached to P119—which include P077 and five image files depicting maps of 

Ohio—consistently traveled as a package. See Goldstein Decl. ¶¶ 14-18, 26-32. 

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REV_00023176, clearly indicates that he is forwarding an email he received (the subject line is 

prefaced with “FW: New Idea Redraft”—the same subject line reflected in P119 at 

LWVOH_00018302-8).

Fifth, the metadata for both P077 and Attachment 3 to P393 both state that their filename 

is the same as the file transmitted by Kincaid to Mann, Mann to Braden, and Braden to Hofeller: 

“Ohio Changes - New Idea Redraft.xls.” See Goldstein Decl. ¶¶ 20, 27. 

Sixth, and critically: P077 and Attachment 3 to P393 both clearly include the words 

“Franklin County Sinkhole.” They do so in the same conspicuous place: the center column at 

the top of the page. Those words unquestionably appeared on the attachment to the spreadsheet 

with the same filename that was transmitted by Kincaid on September 3, 2011. And all of the 

partisan scorings match exactly. Compare Trial Ex. P077 with Attachment 3 to Trial Ex. P393.

Thus, the evidence firmly establishes that Kincaid transmitted the Sinkhole Spreadsheet 

on February 3, 2011 to Mann and DiRossi. Those Ohio map drawers then promptly circulated 

that spreadsheet to Braden, making sure it was placed in Hofeller’s hands.

4. Adam Kincaid’s uncertainty regarding the file name of P077 does not 

provide a basis for an authentication or foundation objection.

Defendants suggest that none of this evidence matters. Instead, they dispute the 

spreadsheet’s authenticity and foundation because Kincaid’s normal practice would be to label 

the header differently, and because he does not remember typing the phrase “Franklin County 

Sinkhole,” giving him “pause” as to the metadata’s accuracy. See Joint Evidence Br., ECF No.

254 at 7-8; Kincaid Dep. Vol. II, ECF No. 230-28 at 368:5-13.

But Kincaid never testified that he did not write the phrase “Franklin County Sinkhole.” 

To the contrary, he admitted that “it’s possible I didn’t follow my standard naming convention.” 

Kincaid Dep. at Vol. II, ECF No. 230-28 at 361:4-5. Moreover, Kincaid admitted—for a third 

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time—to creating this spreadsheet after specifically being shown the phrase “Franklin County 

Sinkhole” at the top of the document:

Q: And then you go across the top going to the right, okay, there’s 

something called “Franklin County sink hole”; do you see that? 

A: I do. 

Q: I think you said you created this document? 

A: Uh-huh.”

Kincaid Dep. at Vol. I, ECF No. 230-27 at 154:10-15 (while discussing P077).

5. Mark Braden’s testimony does not provide a basis for an authenticity

or foundation objection.

Defendants also cite to the testimony of Braden to support their authenticity and/or 

foundation objection. In particular, they state that “Mr. Braden testified that he did not recognize 

this document or any specific communications regarding this document” or using the phrase 

Franklin County Sinkhole. Joint Evidence Spreadsheet, ECF No. 254-1 at P077 (col. 

“Foundation/ Authenticity Objection”). But a careful review of the evidence indicates that 

Braden’s testimony is not probative of the authenticity of or foundation for P077 or Attachment 

3 to P393.

Braden produced P077 pursuant to a subpoena. See Goldstein Decl. ¶ 12. This means 

the spreadsheet is presumptively authentic. But Mr. Braden did not produce the cover email that 

is the first page of P393, the document that specifically ties him to the Sinkhole Spreadsheet, i.e., 

the document where Braden admonishes Hofeller to “keep this secret” while asking for 

Hofeller’s views of the attached materials. Instead, that document was apparently withheld on 

the basis of work product. See Braden Privilege Log at 8, ECF No. 119-1 at 8 (entry for Control 

No. 1434, describing a September 6, 2011 email chain with attachments from Braden to Hofeller 

withheld as attorney work product). It was under these circumstances that Braden then testified 

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that he does not recognize the Sinkhole spreadsheet and could not recall communications about 

it. Joint Evidence Br., ECF No. 254 at 7.

Fortunately, discovery did not stop there. As the Court is well aware, Plaintiffs sought 

documents from the Republican National Committee in early October. Plaintiffs, however, only 

received P393 and other documents after Braden’s deposition, and as a result of substantial 

motions practice See Ohio A. Philip Randolph Inst. v. RNC, No. 18-4258 (6th Cir. Jan. 18, 2019) 

(ECF No. 31-2).

Plaintiffs therefore only learned that Braden sent Hofeller the Franklin County Sinkhole

spreadsheet on September 6, 2011 after the opportunity to confront Braden with this material at 

his deposition had passed. There was no opportunity to refresh Braden’s recollection by using 

his own transmission email, P393. Braden’s lack of recollection at his deposition in no way casts 

doubt on the authenticity or foundation for the document (including the fact that he transmitted it 

to Hofeller). 

B. The hearsay objections to Trial Exhibits P077 and P393 should be overruled.

1. P077 and attachment 3 to P393 are admissible to establish intent.

Plaintiffs offer P077 to establish the intent of the Ohio and national Republican map 

drawers. See PFOF ¶¶ 121-157. The hearsay objection therefore fails under Rule 801(c)(2). 

The spreadsheet establishes that the map drawers created and exchanged partisan scorings, which 

supports a finding that political data drove the setting of the district boundaries (regardless of 

whether the data is true or accurate). The phrase “Franklin County Sinkhole” evidences the map 

drawers’ intent to pack Democrats into the 3rd District. This is probative of the intent of the map 

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drawers regardless of whether Democratic voters in fact largely comprise the new 3rd District in 

Franklin County or whether it was true that the new district was in fact a “sinkhole.”12

The PVI and other political indices reflected in the spreadsheet support a finding that the 

map drawers intended to enact a map that heavily favored Republicans. The Court could make 

such a finding regardless of whether, for example, the proposed 1st District’s PVI score was in 

fact R+6. Thus, the partisan scorings are not hearsay. Setting aside the phrase “Franklin County 

Sinkhole,” the partisan scorings reflected in P077 provide all the necessary support for the 

proposed findings in which Plaintiffs cite P077: the map drawers’ awareness of those scorings 

provides a basis for the straightforward inference that the map drawers believed and intended to 

draw a map that heavily favored Republicans. None of those findings rely on P077 for any truth 

of the assertions in the Sinkhole spreadsheet. 

2. P077 and P393 are also admissible for the truth under Rule

801(d)(2)(B) & (D).

The Sinkhole spreadsheet is also admissible for the truth because Mann and Braden 

adopted the admissions therein as party opponents. As Defendants recognize, Mann and Braden 

are agents of the Ohio legislature and therefore qualify as party opponents. Joint Evidence Br., 

ECF No. 254 at 30. 

Mann adopted the admissions in P077 when she received it from Kincaid and forwarded 

the document to Braden and Clark Bensen on September 3, 2011. See Trial Ex. P119 at 

LWVOH_00018308; Part II.C.2, supra (discussing adopted admissions). Rather than distance 

 12 In the alternative, the phrase “Franklin County Sinkhole” satisfies Rule 803(3) as a description 

of the map drawers’ then-existing state of mind. The declarants’ intended assertion in writing 

the phrase “Franklin County Sinkhole” was to describe the intent to pack Democrats into a new 

district in Franklin County, which provided the architecture for the remaining map to lock down 

a strong Republican advantage. In this framing of the issue, the Court may consider the phrase 

“Franklin County Sinkhole” for its truth. 

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herself from it, Mann forwarded the spreadsheet to a national Republican and a data expert 

(Bensen) for their analysis. These are “surrounding circumstances [that] tie the possessor and 

the document together in some meaningful way,” and thus, satisfy Rule 801(d)(2)(D). Merritt, 

1998 WL 196614, at *1 (quoting Paulino, 13 F.3d at 24). 

Likewise, Braden adopted P077’s admissions when he forwarded the document to 

Hofeller with the admonishment “please keep this secret,” and noted that he would like 

Hofeller’s and Dale Oldham’s views on the proposal. See Trial Ex. P393 at 1. Braden knew the 

proposal was not only worth keeping “secret,” but that the proposal was worthy of being 

submitted to two of the top national Republicans involved in redistricting for input. Braden 

therefore adopted the admissions in the Sinkhole spreadsheet for purposes of Rule 801(d)(2)(B). 

In addition, for the reasons discussed in Part II.C.1 supra, P077 and P393 reflect 

statements that Kincaid made as an agent of the Intervenors who were members of Congress in 

2011. This provides yet another avenue for the Court to rely on the spreadsheet for its truth. 

The documents are also admissible for the truth pursuant to Rule 801(d)(2)(E). 

Significant record evidence demonstrates that the map drawers worked together as a team. The

Sinkhole spreadsheet’s prompt transmittal—first from Kincaid to Mann, DiRossi, and Whatman 

(at 8:13 a.m. on September 3, 2011), see Trial Ex. P119 at LWVOH_00018304, then from Mann 

to Braden (at 8:15 a.m. on September 3, 2011), see Trial Ex. P119 at LWVOH_00018308, and 

then finally from Braden to Hofeller (at 1:45 p.m. on September 6, 2011), see Trial Ex. P393 at 

1—demonstrates the team’s efficient cohesion and how they shared an objective to draw a 

congressional map that locks in 12 Republican seats. See Trial Exs. P119, P393. The Sinkhole 

spreadsheet therefore satisfies Rule 801(d)(2)(E). See Part II.C.2, supra (setting forth legal 

framework for the co-conspirator exception). 

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3. P077 and P393 are admissible for the truth pursuant to Rule 803(6).

Finally, the spreadsheet is also admissible for its truth as a record of a regularlyconducted activity. Kincaid testified that he created this spreadsheet while he was working as 

the National Republican Congressional Committee’s Redistricting Coordinator, and that he made 

this document in the course of his regular work on Ohio redistricting. See Kincaid Dep. Vol. II,

ECF No. 230-28 at 516:2-10 (“A: These all would have been produced over the course of my 

normal work at the NRCC. . . . Q: So we’re clear for the record, you’re reviewing all the exhibits 

that were marked today. A: Yes.”). He stated on numerous occasions that creating this and 

similar changes sheets was his job at the NRCC, see Kincaid Dep. Vol. II, ECF No. 230-28 at 

298:15-299:25, and he showed knowledge about how the NRCC would store its congressional 

redistricting files. See Kincaid Dep. Vol. II, ECF No. 230-28 at 529:13-23; 536:19-537:9. 

V. Defendants’ Objections to Dr. David Niven’s Testimony Should be Overruled. 

A. Dr. Niven’s census tract analysis 

Dr. Niven determined that the current congressional map splits census tracts between 

congressional districts 59% more frequently than under the previous map, and that Democraticoriented tracts are 46.8 percent more likely than Republican-oriented tracts to be split. Niven, 

ECF No. 242 at 22:18-23, 19:3-4; Trial Ex. P524, Niven Report at 2, 5. Defendants object to (1) 

the use of census tracts as the geographical unit employed to analyze this statewide pattern of 

division, and (2) the fact that Dr. Niven did not detail in his report every protocol that he 

performed to validate this pattern. Joint Evidence Br., ECF No. 254 at 36-37. These objections 

are without merit.

1. Census tracts are the appropriate unit for this study. 

To study the splitting of political subdivisions, communities of interest, and 

neighborhoods, Dr. Niven chose census tracts as the most appropriate unit for analysis. He did 

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so because these divisions—that were created by the United States Census for research and 

analysis purposes—are designed to be stable and reliable indicators, permitting researchers to 

study patterns over time. Niven, ECF No. 242 at 13:24-14:9, 18:11-15; Trial Ex. P524, Niven 

Report at 4-6.

2. Dr. Niven employed the research protocols of his profession in 

examining the pattern of division.

Defendants claim that Dr. Niven did not “use the same protocols to test for reliability and 

statistical significance that he would have used in his academic work.” Joint Evidence Br., ECF 

No. 254 at 37. This is untrue. Dr. Niven did calculate the statistical significance and strength of 

the relationships that he found, but did not include that level of detail in his report. When asked 

by opposing counsel at trial, Dr. Niven affirmed this, and explained, “If this were an academic 

paper, I would have included a lot more in the way of footnotes and statistical documentation. I 

was attempting, for the purposes of economy and to be understood by a wider audience, not to 

get too far into the weeds of statistics in the report.” Niven, ECF No. 242 at 80:8-82:18. 

Defendants likewise complain that Dr. Niven’s report did not include analysis of other 

possible explanations for the differences in the map’s treatment of Republican- and Democraticoriented census tracts. But, as Dr. Niven explained at trial, “I did go back after our lovely chat 

during the deposition and use what was available within the OCURD data, so I controlled for 

population size and the partisan effect maintained even when controlling for population size.” 

After soliciting this information from Dr. Niven at trial, opposing counsel moved to strike his 

answer, objecting that it was not included in his report. Niven, ECF No. 242 at 82:8-21. The 

gravamen of these objections is thus not that Dr. Niven’s analysis is unreliable, but that his report 

did not contain the elaborations that Defendants elicited in court. Dr. Niven supplied the 

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explanation when requested; but defense moved to strike. Dr. Niven’s answers should stand, 

however:

Federal Rule of Civil Procedure 26(a)(2)(B) “contemplates that the expert will 

supplement, elaborate upon, explain and subject himself to cross-examination upon his report.” 

Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006); id. (Expert could testify 

to “generally accepted accounting principles” although not covered in his report, because “it may 

be assumed” that experts base their opinions on the “normal general standards of their 

profession”.) The rule “does not limit an expert’s testimony simply to reading his report.” Id.;

see also In re E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., 348 F. Supp. 3d 650, 660-

62 (S.D. Ohio 2016). Experts are permitted to “supplement, elaborate upon, [and] explain” their 

reports.” du Pont, 348 F. Supp. 3d at 662. An obvious purpose of the rule is to prevent surprise, 

and in du Pont, like here, Defendants did “not claim to be surprised by the scope” of the expert’s 

testimony. Id. at 663. This is far different from a situation in which an expert first offers a new 

opinion at trial.

B. Dr. Niven’s Principal Study 

Dr. Niven took “two main approaches” in his work. (1) The first, discussed above, was 

to look at statewide patterns as revealed through the assignment of census tracts to congressional 

districts across the state, and to look at congressional office locations. (2) The preponderance of 

his analysis, however, consisted of “a deeper look at particular districts and the way they were 

created and who was included in them and who was excluded from them across several . . .

critical areas in the state.” Niven, ECF No. 242 at 13:1-11. This deeper look—which examined 

the construction of districts 1, 2, 3, 12, 15, 9, 11, 13, 14, and 16—accounted for 30 of the 35 

pages of his report, as well as the bulk of his trial testimony. Id. at 26:20- 68:16. Defendants do 

not lodge any objection to Dr. Niven’s district-by-district study, which found a pattern of 

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strategic sorting of voters throughout the map. Niven, ECF No. 242 at 68:2-16; Trial Ex. P524, 

Niven Report at 33.

VI. Defendants’ Objections to Dr. Wendy K. Tam Cho’s Testimony Should be 

Overruled.

Dr. Cho compared Ohio’s enacted congressional district map against a sample of 

simulated maps that served as a baseline for understanding the typical partisan effect of an Ohio 

congressional map produced by a nonpartisan redistricting process. PFOF ¶ 764. To serve as 

such a baseline, all of the simulated maps account for the applicable legal requirements 

(contiguity, population equality, and the Voting Rights Act), and are consistent with recognized, 

nonpartisan traditional districting criteria to the extent those optional criteria were actually 

applied by the Ohio legislature in enacting the current map. PFOF ¶ 763.

Defendants contend that Dr. Cho’s simulated maps “have nothing to do with the Ohio 

General Assembly’s goals” and instead achieve “different goals.” Joint Evidence Br., ECF No. 

254 at 38. Dr. Cho did not make up her own “goals” for her simulated maps to achieve. Rather, 

she applied two sets of constraints: the applicable legal requirements and nonpartisan traditional 

districting criteria to the extent applied by the Ohio legislature. PFOF ¶ 763. 

Defendants take issue with three specific aspects of Dr. Cho’s implementation of these 

constraints: incumbency protection, population equality, and Voting Rights Act compliance. 

Joint Evidence Br., ECF No. 254 at 38. None of these are valid critiques. Dr. Cho explained 

each of these aspects and why she was assured that the simulated maps were a valid baseline for 

comparison of partisan effect. On incumbency protection, Dr. Cho cited evidence that it was not 

a motivation of the Ohio legislature, noting the unnecessary pairing of incumbents and express 

disavowal of the goal of incumbency protection. PFOF ¶ 773. Similarly, she provided a detailed 

and reasoned analysis, not contradicted by any other expert, as to why her conclusions were not 

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affected by the particular population equality constraint she employed. PFOF ¶ 767. Finally, Dr. 

Cho applied the actual legal constraint of the Voting Rights Act, as established by the undisputed 

testimony of Dr. Handley that a 45% BVAP district in the Cleveland area was required.13 PFOF

¶ 766.

Defendants also contend, in passing, that Dr. Cho’s three million maps “are a drop in the 

proverbial bucket of possible redistricting maps.” Joint Evidence Br., ECF No. 254 at 38. The 

crucial question is not how many maps Dr. Cho produced, but rather whether her three million 

maps are a representative sample of the universe of possible maps. As Dr. Cho showed in her 

peer reviewed work, PFOF ¶ 764, and explained in her expert reports and trial testimony in this 

case, id. ¶¶ 757-62, her methodology produces a representative sample. The representativeness 

of Dr. Cho’s sample is uncontested; no evidence or expert testimony has been adduced to the 

contrary.

Finally, Defendants argue that Dr. Cho’s algorithm “has not been adequately peer 

reviewed or vetted by anyone.” Joint Evidence Br., ECF No. 254 at 38. This is false. The 

algorithm Dr. Cho utilized in her analysis in this case was presented at the premier computer 

science conference after acceptance through an especially rigorous peer review process. Pls.’ 

Opp. to Mot. to Exclude Dr. Cho, ECF No. 176 at 11-12. Notwithstanding Defendants’ 

intimations, conference publications are in fact the preferred method of peer review in this field. 

ECF No. 176 at 10-11. Dr. Cho tested her algorithm on a small geographic area in which all the 

possible maps are known and reported, in the same conference publication, that the sample her 

algorithm produced has the same distribution as the true universe of possible maps. PFOF ¶ 757. 

 13 To the extent Defendants chose to consider only maps with a district with BVAP above 50%, 

Dr. Cho’s analysis helpfully reveals the partisan effects of that choice, just as it does for all the 

other choices Defendants made in crafting the enacted map. PFOF ¶ 775.

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Moreover, this algorithm builds off Dr. Cho’s prior work, which has also been the subject of peer 

review. PFOF ¶ 756. While Dr. Cho’s code was not itself submitted for peer review, that is the 

standard practice in the field because the code is only the implementation of the ideas that have 

been the subject of peer review. Cho, ECF No. 243 at 99:8-12; see also id. at 127:3-7.

Defendants were of course entitled to review Dr. Cho’s methodology and code in the 

context of this case, and to retain experts to assist them in that effort. Yet, they never took 

Plaintiffs’ counsel up on an offer to provide Dr. Cho’s code in native format. PFOF ¶ 756. And 

the experts they chose to retain lacked expertise in the relevant computer code, id. ¶¶ 822, 825, 

and algorithms, id. ¶ 826. The academic community has vetted Dr. Cho’s methodology. If 

Defendants have not, that is the result of their own choices. 

Dr. Cho’s testimony and expert reports are not only admissible, they are deserving of 

significant weight in the Court’s consideration. Dr. Cho possesses sterling qualifications in 

precisely the fields of analysis she applied in this case. PFOF ¶¶ 752-53. Dr. Cho employed a 

methodology that she had subjected to peer review through multiple publications. PFOF ¶ 756. 

Dr. Cho’s expert opinions quantify the partisan effect of the enacted map while controlling for 

political geography, legal districting requirements, and nonpartisan districting principles. Id.

¶ 760. Dr. Cho’s analysis will assist the Court in reaching conclusions about that partisan effect 

and the degree to which partisan intent influenced the enacted map. Id. 

VII. Conclusion

For all of the foregoing reasons, and the reasons detailed in Plaintiffs’ responsive 

spreadsheet addressing Defendants’ and Intervenors’ objections, their objections should be 

overruled and Plaintiffs’ evidence admitted.

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April 2, 2019 Respectfully submitted,

T. Alora Thomas-Lundborg

Theresa J. Lee

Emily Rong Zhang

Dale E. Ho

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor

New York, NY 10004 

Tel.: (212) 549-2500

athomas@aclu.org

tlee@aclu.org

erzhang@aclu.org

dho@aclu.org

Robert Fram

Nitin Subhedar

Jeremy Goldstein

Covington & Burling LLP

One Front Street

San Francisco, CA 94111

Tel.: (415) 591-6000

rfram@cov.com

nsubhedar@cov.com

jgoldstein@cov.com

/s/ Freda J. Levenson, trial attorney

Freda J. Levenson (0045916)

Elizabeth Bonham (0093733)

American Civil Liberties Union of Ohio Fdtn.

4506 Chester Avenue

Cleveland, OH 44103

Tel.: (216) 472-2220

Facsimile: (216) 472-2210

flevenson@acluohio.org

ebonham@acluohio.org

David Carey (0088787)

American Civil Liberties Union of Ohio Fdtn.

1108 City Park Avenue

Columbus, OH 43206

Tel.: (614) 586-1972

dcarey@acluohio.org

Michael Baker

Perrin Cooke

Peter J. Rechter

Robert S. Day

Jacob Canter

Isaac Wood

Covington & Burling LLP

850 Tenth Street, NW

Washington, DC 20001

Tel.: (202) 662-6000 

mbaker@cov.com

pcooke@cov.com

prechter@cov.com

rday@cov.com

jcanter@cov.com

iwood@cov.com

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CERTIFICATE OF SERVICE

I, Freda J. Levenson, hereby certify that the foregoing document was served upon all 

counsel of record in this case via ECF. 

/s/ Freda J. Levenson

Counsel for Plaintiffs

Case: 1:18-cv-00357-TSB-KNM-MHW Doc #: 257 Filed: 04/02/19 Page: 46 of 46 PAGEID #: 23127