IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

 ) 

OHIO A. PHILIP RANDOLPH INSTITUTE, ) 

LEAGUE OF WOMEN VOTERS OF OHIO, ) 

THE OHIO STATE UNIVERSITY COLLEGE ) 

DEMOCRATS, NORTHEAST OHIO YOUNG ) 

BLACK DEMOCRATS, HAMILTON COUNTY ) 

YOUNG DEMOCRATS, LINDA GOLDENHAR, ) 

DOUGLAS BURKS, SARAH INSKEEP, ) 

CYNTHIA LIBSTER, KATHRYN DEITSCH, ) 

LUANN BOOTHE, MARK JOHN GRIFFITHS, ) 

LAWRENCE NADLER, CHITRA WALKER, ) 

TRISTAN RADER, RIA MEGNIN, ) 

ANDREW HARRIS, AARON DAGRES, ) 

ELIZABETH MYER, BETH HUTTON, ) 

TERESA THOBABEN, ) 

and CONSTANCE RUBIN, ) No. 1:18-cv-00357-TSB 

 ) 

 Plaintiffs, ) Judge Timothy S. Black 

 ) Judge Karen Nelson Moore 

v. ) Judge Michael H. Watson 

 ) Magistrate Judge Karen L. Litkovitz 

RYAN SMITH, Speaker of the Ohio House ) 

of Representatives, LARRY OBHOF, ) 

President of the Ohio Senate, and ) 

JON HUSTED, Secretary of State of Ohio, ) 

in their official capacities, ) 

 ) 

 Defendants. ) 

________________________________________) 

DEFENDANTS’ POSITION STATEMENT REGARDING DEPOSITIONS 

The Court ordered the parties to confer about, among other things, the applicability of the 

parties’ Rule 26(f) report to the intervenors. The parties’ principal area of disagreement involves 

the number of depositions for each side. 

Prior to the Court’s order, intervenors had attempted to open discussions about the 

number of depositions. Plaintiffs responded “on this point there is really no room for 

compromise.” (M. Baker email, 8/31/18). During the subsequent Court-ordered meet and confer, 
2 

intervenors proposed a reasonable plan—leaving the number of hours for all depositions for each 

side the same (i.e. 175 hours), but increasing the maximum number of depositions for each side 

from 25 to 35. Plaintiffs did not budge from their earlier position and rejected the proposal. 

Plaintiffs did not offer any compromise or alternative in return. 

To the extent the Court deems this issue ready for decision now, intervenors’ proposal 

makes sense for several reasons. First, after Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018), each 

plaintiff has an affirmative obligation to prove facts establishing standing. Plaintiffs need to 

prove through facts and evidence that their claims seek to vindicate an “individual legal interest” 

and not a “collective political interest.” Id. at 1932. This Court made it clear in its order on 

defendants’ motion to dismiss that while plaintiffs could survive a motion to dismiss based on 

their allegations, plaintiffs still need to prove with facts that they have standing. (Dkt. 61) (Order 

Denying Motion to Dismiss at 13 n.4) (Page ID #665). 

Thus, Gill has effectively made a deposition of each individual or organizational plaintiff 

an essential part of discovery. Here there are 22 plaintiffs. This leaves defendants, and now 

intervenors, with only three remaining fact depositions to split among themselves. Gill does not 

place a comparable practical restraint on how plaintiffs use their depositions. So, as the schedule 

stands, plaintiffs have 25 depositions to use as they choose, while defendants have constraints on 

defendants’ depositions that are unique to redistricting litigation. 

Second, the depositions of the individual plaintiffs are likely to be reasonably short 

depositions. With intervenors’ proposal, defendants are encouraged to keep it that way, to allow 

some time for a few additional depositions of key witnesses. Importantly, the parties may be 

able to schedule more than one plaintiff deposition on any single day, and the overall schedule 

under intervenors’ proposal will not change. 
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Third, when defendants and plaintiffs discussed the number of depositions during the 

expedited Rule 26(f) process, defendants were not aware of the extensive number of individuals 

that plaintiffs would later disclose as having discoverable information. Over a week after 

agreeing to 25 depositions, plaintiffs disclosed over 80 such individuals. (Plaintiffs’ Initial 

Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (July 13, 2018)). Importantly, despite seven 

years to prepare their case, plaintiffs did not disclose during the parties’ discussions about the 

discovery plan that they would later identify so many potential witnesses. See Martin v. Trott 

Law, P.C., No. 15-12838, 2016 WL 9444403 (E.D. Mich. Dec. 20, 2016) (increasing number of 

depositions following opposing party’s initial disclosures). Also, as discovery has progressed, 

and as defendants have gathered facts and documents, defendants have learned that various 

individuals played important roles in the development of the 2011 maps that were a compromise 

between political parties. Typically, in most cases, there is much more time to gather facts and 

make strategic decisions about depositions and witnesses. Here, in contrast, defendants are 

working uphill on an expedited schedule, having had only a fraction of the seven-year span 

plaintiffs have had to plan their case. 

Lastly, restricting defendants to deposing only three non-plaintiff fact witnesses puts 

defendants at a significant disadvantage at trial. Under plaintiffs’ 25-deposition plan, plaintiffs 

will most likely have the opportunity to depose every single defense witness who will be called 

at trial. In contrast, with only three depositions to spare, defendants will likely see most of 

plaintiffs’ witnesses at trial for the first time. This prejudices defendants and will slow down the 

trial. If defendants will be limited to a fixed time to put on their case, defendants will need to 

spend precious time establishing basic foundational points. 
4 

Fundamental in our system of dispute resolution is the opportunity to take meaningful 

discovery. See Bell Data Network Communs. v. Symbol Techs., No. 96-1064, 1997 WL 289685 , 

*2 (6th Cir. May 29, 1997) (reversing because one party was not afforded an “adequate 

opportunity for discovery”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 232 

(6th Cir. 1994) (quotation and citation omitted) (stating that an “adequate opportunity to conduct 

discovery” is essential). Adequate discovery also avoids many problems, including unfair 

surprise, and it promotes efficient trials. 

CONCLUSION

 This Court should allow defendants and intervenors to take additional depositions based 

on the request by intervenors. 

This the 12th day of September, 2018. 

MICHAEL DEWINE 

Ohio Attorney General 

By: /s/Phillip J. Strach 

Phillip J. Strach* 

N.C. State Bar No. 29456 

*Lead and Trial Counsel 

Michael McKnight 

N.C. State Bar No. 36932 

 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

 4208 Six Forks Road, Suite 1100 

 Raleigh, NC 27609 

 Tel: 919-787-9700 | Fax: 919-783-9412 

 phil.strach@ogletree.com 

 michael.mcknight@ogletree.com 

/s/Steven T. Voigt 

Steven T. Voigt (0092879) 

Principal Assistant Attorney General 

Constitutional Offices Section 

30 E. Broad Street, 16th Floor 

Columbus, Ohio 43215 

Tel: 614- 466-2872 | Fax: 614-728-7592 

steven.voigt@ohioattorneygeneral .gov 

Attorneys for Defendants 
5 

CERTIFICATE OF SERVICE

 I, Phillip J. Strach, hereby certify that I have this day served the foregoing upon the 

following persons via electronic mail: 

T. Alora Thomas-Lundborg 

Dale E. Ho 

Theresa J. Lee 

Emily Rong Zhang 

American Civil Liberties Union Foundation 

125 Broad Street, 18th Floor 

New York, NY 10004 

Tel.: (212) 549-2500 

athomas@aclu.org 

dho@aclu.org 

tlee@aclu.org 

erzhang@aclu.org 

Freda J. Levenson (0045916) 

American Civil Liberties Union of Ohio Fdtn. 

4506 Chester Avenue 

Cleveland, OH 44103 

Tel.: (216) 472-2220 

Facsimile: (216) 472-2210 

flevenson@acluohio.org 

Paul Moke (0014099) 

Cooperating Attorney for ACLU of Ohio 

Wilmington College* 

1252 Pyle Center 

Wilmington, OH 45177 

Tel.: 937-725-7501 

paul.moke@gmail.com 

* Institutional affiliation for the purpose of 

identification only 

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 

Michael Baker 

Perrin Cooke 

Peter Rechter 

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 

iwood@cov.com 

 

Attorneys for Plaintiffs

 
6 

Respectfully submitted, this the 12th day of 

September 2018. 

MIKE DEWINE 

Ohio Attorney General 

By: /s/Phillip J. Strach 

Phillip J. Strach* 

N.C. State Bar No. 29456 

*Lead and Trial Counsel 

Michael McKnight 

N.C. State Bar No. 36932 

phil.strach@ogletreedeakins.com 

michael.mcknight@ogletreedeakins.com 

OGLETREE, DEAKINS, NASH, 

SMOAK & STEWART, P.C. 

4208 Six Forks Road, Suite 1100 

Raleigh, North Carolina 27609 

Telephone: (919) 787-9700 

Facsimile: (919) 783-9412 

Steven T. Voigt 

Ohio State Bar No. 0092879 

Nicole M. Koppitch 

Ohio State Bar No. 0082129 

Ohio Attorney General's Office 

Constitutional Offices Section 

30 E. Broad St., 16th Floor 

Columbus, OH 43215 

614-466-2872 

Fax: 614-728-7592 

Email: steven.voigt@ohioattorneygeneral.gov 

Email: nicole.koppitch@ohioattorneygeneral.gov 

35560860.1 

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