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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

Judge Karen Nelson Moore

Judge Michael H. Watson

Magistrate Judge Karen L. Litkovitz

IN RE: SUBPOENAS SERVED ON 

EDWARD GILLESPIE AND JOHN 

MORGAN

Transferred from the United States District 

Court for the District of Columbia,

Civil Action No. 1:18-mc-00105-RC

EDWARD GILLESPIE AND JOHN MORGAN’S SUPPLEMENTAL BRIEF 

IN OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH SUBPOENAS

As Edward Gillespie and John Morgan explained in their initial opposition to Plaintiffs’ 

motion to compel, Plaintiffs have misconstrued the central question in this matter by erroneously 

believing a dispute over the sufficiency of Messrs. Gillespie’s and Morgan’s searches is 

somehow a dispute about the relevancy and burden of the underlying document requests. These 

are legally distinct questions. In this case, Messrs. Gillespie and Morgan have complied with 

Plaintiffs’ requests (with only two exceptions), and neither Plaintiffs nor this Court have 

authority to control the document searches of subpoena targets without some strong basis to 

suspect they were deficient. Courts in the footprint of the Sixth Circuit emphatically agree with 

Messrs. Gillespie and Morgan on this point, holding that “speculation, standing alone, is not a 

sufficient basis for granting a motion to compel” more searches after counsel has certified 

compliance. Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-CVCase: 1:18-cv-00357-TSB-KNM-MHW Doc #: 90 Filed: 11/07/18 Page: 1 of 8 PAGEID #: 848
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1081, 2013 WL 608154, at *10 (S.D. Ohio Feb. 19, 2013) (citations omitted); see also Alomari 

v. Ohio Dep’t of Pub. Safety, No. 2:11-CV-00613, 2013 WL 5874762, at *4 (S.D. Ohio Oct. 30, 

2013) (“[I]n the event Defendants indicate that, after a reasonable inquiry, particular types of 

documents Plaintiff seeks do not exist, the Court will accept Defendants’ efforts as complete.”). 

Likewise, decisions of district courts in this Circuit support Messrs. Gillespie and 

Morgan’s position that documents created prior to 2011—before the data to redistrict even 

existed—and documents unrelated to Ohio redistricting are not relevant, holding that courts 

should “impose a reasonable restriction on how far back discovery may extend,” Wesley Corp. 

v. Zoom T.V. Prod., LLC, No. 17-10021, 2018 WL 372700, at *2 (E.D. Mich. Jan. 11, 2018), 

and criticizing “overbroad discovery requests that seek irrelevant information.” Howell v. 

Buckeye Ranch, Inc., No. 2:11-CV-1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct. 1, 2012). 

Thus, the applicable law is in all ways consistent with the authority Messrs. Gillespie and 

Morgan cited in their original briefing, and the Court should deny Plaintiffs’ motion in full.

ARGUMENT

I. Messrs. Gillespie and Morgan Conducted Adequate Searches Under the Law of 

Courts in this Circuit

The central premise of Plaintiffs’ motion to compel is that Messrs. Gillespie and Morgan 

“unilaterally applied their own search terms and parameters” rather than submit to terms and 

parameters Plaintiffs would like to impose. See Movant’s Reply in Further Supp. of Their Mot. 

to Compel Compliance with Subpoenas Served on Edward Gillespie and John Morgan (“Reply 

ISO Mot. to Compel”) at 5-6, In re Subpoenas Served on Edward Gillespie and John Morgan 

(“In re Subpoenas”), No. 1:18-MC-00105-RC, (D.D.C. Sept. 27, 2018), ECF No. 6. But, as 

Messrs. Gillespie and Morgan explained in their prior briefing, the law entitles them to apply 

their own search terms and parameters—which were thorough and reasonable—and ignore 

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Plaintiffs’. Unsurprisingly, courts in this Circuit agree: “The district court should generally not 

play a role in dictating the design of a search, choosing search tools, selecting search terms, or 

designating custodians, unless a responding party’s choice ‘is manifestly unreasonable or the 

requesting party demonstrates that the resulting production is deficient.’” Commins v. NES 

Rentals Holdings, Inc., No. 3:16CV-00608-GNS, 2018 WL 3186983, at *3 (W.D. Ky. June 28, 

2018) (quoting Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 CV 

0293, 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017)). “The party seeking discovery bears 

the burden of proving that a discovery response is inadequate.” Id. 

A counsel’s certification as to completeness remains sufficient to satisfy the party’s 

response obligation. Firneno v. Nationwide Mktg. Servs., Inc., No. 14-CV-10104, 2017 WL 

9471685, at *9 (E.D. Mich. Mar. 20, 2017), report and recommendation adopted, No. 2:14-CV10104, 2017 WL 1381105 (E.D. Mich. Apr. 18, 2017) (“Because the attestation of counsel is to 

be relied on, there is no reasonable basis to compel production of any documents . . . .”). “[I]n 

the event Defendants indicate that, after a reasonable inquiry, particular types of documents 

Plaintiff seeks do not exist, the Court will accept Defendants’ efforts as complete.” Alomari v. 

Ohio Dep’t of Pub. Safety, No. 2:11-CV-00613, 2013 WL 5874762, at *4 (S.D. Ohio Oct. 30, 

2013); Firneno, 2017 WL 9471685, at *9 (“Because the attestation of counsel is to be relied on, 

there is no reasonable basis to compel production of any documents . . . .”); Averett v. Honda of 

Am. Mfg., Inc., No. 2:07-CV-1167, 2009 WL 799638, at *3 (S.D. Ohio Mar. 24, 2009) (“There is 

no question that a written response by trial counsel is a certification that counsel and client, 

together, have made a diligent search for responsive documents.”). Here, that certification has 

occurred, so the presumption is that Messrs. Gillespie and Morgan have no further obligations to 

search for documents.

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Plaintiffs therefore had the burden of rebutting that presumption. Precedent in this 

Circuit, as in others, is clear: “this Court will not grant a motion to compel based on the mere 

suspicion that the producing party possesses additional information that it has not disclosed.”

Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-CV-1081, 2013 

WL 608154, at *14 (S.D. Ohio Feb. 19, 2013) (citing In re Porsche Cars N. Am., Inc., No. 2:11–

md–2233, 2012 WL 4361430, at *9 (S.D. Ohio Sept. 25, 2012) (“Plaintiffs’ speculation that 

additional emails must exist, that the lack of privileged documents is a sign that Defendants’ 

production must be inadequate, and that [Defendant] is a technologically advanced company that 

surely maintains all of its documents in electronic form will be insufficient to compel judicial 

involvement unless Plaintiffs provide evidence that Defendants are improperly withholding 

documents.”)); Alomari, 2013 WL 5874762, at *4 (“Plaintiff’s speculation that additional 

documents must exist will be insufficient to compel judicial involvement unless he offers 

evidence that Defendants are improperly withholding documents.”); John B. v. Goetz, 531 F.3d 

448, 460 (6th Cir. 2008) (“mere skepticism that an opposing party has not produced all relevant 

information is not sufficient to warrant drastic electronic discovery measures) ((citing McCurdy 

Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)) (granting 

relief from two discovery orders).

But suspicion is all Plaintiffs offer. Plaintiffs’ lead argument that the search terms they 

can dream up are themselves the evidence that more documents simply must exist, see Reply 

ISO Mot. to Compel 6-7 (litany of search terms), is simply another way of saying that they get to 

decide how the searches are conducted, when the law assigns that role to the targets of the 

subpoena. Similarly, their amazement that Mr. Morgan has only eleven documents and a data set 

responsive to their subpoena, Reply ISO Mot. to Compel 9, is suspicion, not evidence, of an 

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improper search.1 And their arguments, for example, that Mr. Gillespie “failed to show any 

burden” in connection with running his searches as Plaintiffs would prefer, Reply ISO Mot. to 

Compel 8, reveals the pervasive problem with all their arguments: they misapprehend the 

governing standard, as if this were a dispute about burden or relevancy, when the question is the 

sufficiency of the search. Messrs. Gillespie and Morgan do not have to show that Plaintiffs’ ideas 

are burdensome; Plaintiffs must present evidence that Messrs. Gillespie and Morgan have not 

conducted adequate searches. They have not met that burden.2

II. The Relevancy Objections of Messrs. Gillespie and Morgan Are Supported by the 

Law in This Circuit

That leaves only two discrete issues: (1) whether Plaintiffs are entitled to documents 

created even before redistricting could begin using 2010 Census data and a year and more before 

the allegedly unlawful map was enacted into law and (2) whether Plaintiffs are entitled to an 

open season fishing expedition into political documents unrelated to Ohio. The law of courts in 

this Circuit supports Messrs. Gillespie and Morgan on these questions.

“[T]he Court has the duty to deny discovery directed to matters not legitimately within 

the scope of Rule 26, and to use its broad discretionary power to protect a party or person from 

harassment or oppression that may result even from a facially appropriate discovery request.” 

Hendricks v. Hazzard, No. 2:11-CV-399, 2013 WL 4052873, at *2 (S.D. Ohio Aug. 12, 2013) 

(citing Herbert v. Lando, 44l U.S. 153 (1979)). “[T]he proponent of a motion to compel 

discovery bears the initial burden of proving that the information sought is relevant.” Doe v. 

 

1 And, as Mr. Morgan’s briefing and related affidavit indicate, the volume of responsive documents he produced is 

not surprising considering the amount and type of services he provided in Ohio in 2011 and the way he provided 

those services. Edward Gillespie and Morgan’s Brief in Opp’n to Pls.’ Mot. to Compel Compliance with Subpoenas 

and Declaration of John Morgan, In re Subpoenas, No. 1:18-MC-00105-RC, (D.D.C. Sept. 27, 2018), ECF Nos. 4 

and 4-3.

2 The sufficiency of searches performed by Messrs. Gillespie and Morgan is detailed in their brief in opposition to 

the Motion to Compel, and in their accompanying sworn affidavits. See, id. at ECF No. 4 at pp. 3-8, 10-17, and 

ECF Nos. 4-1 and 4-3.

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Ohio State Univ., No. 2:16-CV-171, 2018 WL 4958958, at *2 (S.D. Ohio Oct. 15, 2018) 

(quoting Guinn v. Mount Carmel Health Sys., No. 2:09-cv-226, 2010 WL 2927254, at *5 (S.D. 

Ohio July 23, 2010)); Hendricks, 2013 WL 4052873, at *3 (same). 

Time Frame. Setting a time limit on discovery is a paradigmatic example of a court’s 

duty to curtail the outer bounds of relevancy. “[D]iscovery is most obviously and appropriately 

directed to providing context” around a key event within the litigation, with a court “impos[ing] 

a reasonable restriction on how far back discovery may extend.” Wesley Corp. v. Zoom T.V. 

Prod., LLC, No. 17-10021, 2018 WL 372700, at *2 (E.D. Mich. Jan. 11, 2018). In Wesley Corp., 

the Court determined limiting discovery to “approximately three months before the [key event 

within litigation] should sufficiently set the stage for Plaintiffs’ claims.” Id. (emphasis added). 

The key event here is the creation and enactment of the 2011 map, and that process could not 

even begin until after Census data was released in March 2011. The map drawing did not 

actually occur until July and August of that year, so documents created in 2010 are extremely 

remote. See also Goree v. United Parcel Serv., Inc., No. 14-CV-2505-SHL-TMP, 2015 WL 

11120571, at *6 (W.D. Tenn. Sept. 29, 2015) (limiting discovery time frame to relevant period). 

Even if pre-2011 documents were relevant, Plaintiffs’ demands for them are 

disproportionate to their needs. The factors stated in Messrs. Gillespie and Morgan’s initial brief, 

Edward Gillespie and Morgan’s Brief in Opp’n to Pls.’ Mot. to Compel Compliance with 

Subpoenas (“Opp. Br.”) at 20-21, In re Subpoenas, No. 1:18-MC-00105-RC, (D.D.C. Sept. 27, 

2018), ECF No. 4, mirror the factors used in Sixth Circuit courts, as does the analysis stated 

there. Compare Brown v. Mohr, No. 2:13-CV-0006, 2017 WL 2832631, at *1 (S.D. Ohio June 

30, 2017), aff’d, No. 2:13-CV-06, 2017 WL 10056799 (S.D. Ohio Nov. 6, 2017), with Oxbow

Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 6 (D.D.C. 2017). Thus, 

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production of pre-March 2011 documents remains disproportionate and necessitates denying the 

motion to compel.

Non-Ohio Documents. Plaintiffs’ request for documents unrelated to Ohio redistricting 

remain overbroad and irrelevant under Sixth Circuit precedent. As this Court has recognized, “a 

litigant has no right to serve overbroad discovery requests that seek irrelevant information.” 

Howell v. Buckeye Ranch, Inc., No. 2:11-CV-1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct. 1, 

2012). As identified in Messrs. Gillespie and Morgan’s Opposition Brief, the information 

Plaintiffs’ seek, see Mot. to Compel, Ex. G. at 7–8, “covers all states ‘including,’ but not limited 

to, Ohio.” Opp. Br. at 21. This litigation concerns Ohio redistricting. Material concerning the 

other forty-nine States is irrelevant and the request is patently overbroad because it reaches the 

entire nation. 

Indeed, Plaintiffs’ request is a classic, impermissible “fishing expedition.” “In 

considering the scope of discovery, the Court may balance Plaintiffs’ right to discovery with the 

need to prevent ‘fishing expeditions.’” Askin v. Ocwen Loan Servicing, LLC, No. 2:16-CV-325, 

2017 WL 4404487, at *2 (S.D. Ohio Oct. 4, 2017) (internal quotations and citations omitted) 

(denying motion to compel interrogatories). As previously discussed, Plaintiffs’ requests appear 

to target “fundraising strategy and donor information,” which strongly implies an abusive 

purpose and certainly an abusive reach, Opp. Br. at 21, with no apparent relation to their claim. 

Finally, Mr. Gillespie’s burden argument stands in conformity with the law applied in the 

footprint of the Sixth Circuit, and the motion should be denied for this independent reason.

CONCLUSION

For the foregoing reasons, and those provided in the initial opposition brief of Messrs. 

Gillespie and Morgan, Plaintiffs’ Motion should be denied.

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Dated: Nov. 7, 2018 Respectfully submitted,

/s/ Katherine L. McKnight

Katherine L. McKnight (pro hac vice)

Email: kmcknight@bakerlaw.com

BAKER & HOSTETLER LLP

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5403

(202) 861-1500 / Fax (202) 861-1783

Patrick T. Lewis (0078314)

Email: plewis@bakerlaw.com

BAKER & HOSTETLER LLP

Key Tower

127 Public Square, Suite 2000

Cleveland, Ohio 44114

(216) 861-7096 / Fax (216) 696-0740

Counsel to Edward Gillespie and John Morgan 

CERTIFICATE OF SERVICE

I certify that on Nov. 7, 2018, a true and correct copy of the foregoing was filed via the 

Court’s CM/ECF system and served via electronic filing upon all counsel of record in this case. 

/s/ Patrick T. Lewis 

Counsel to Edward Gillespie and John Morgan

013253.000001 4813-8206-9882

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