Ohio A. Philip Randolph Inst. v. Larry Obhof ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0086n.06
Case No. 19-3551
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OHIO A. PHILIP RANDOLPH INSTITUTE, )
et al., )
FILED
Feb 05, 2020
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellees, )
)
v. )
)
LARRY OBHOF, President of the Ohio )
Senate; LARRY HOUSEHOLDER, Speaker )
of the Ohio House of Representatives; and )
FRANK LAROSE, Secretary of State of Ohio, ) ON APPEAL FROM THE UNITED
in their official capacities, ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
Defendants, ) OHIO
)
REPUBLICAN NATIONAL COMMITTEE; )
ADAM KINCAID; NATIONAL )
REPUBLICAN CONGRESSIONAL )
COMMITTEE, )
)
Movants-Appellants. )
BEFORE: GUY, SUTTON, and GRIFFIN, Circuit Judges.
PER CURIAM. In May 2018, several Ohio voters and political organizations sued a
handful of state politicians, alleging that Ohio’s congressional districting map violates the U.S.
Constitution. During discovery, one of the plaintiffs, the Randolph Institute, sought documents
Case No. 19-3551, Ohio A. Philip Randolph Inst., et al. v. Larry Obhof, et al.
and deposition testimony from third parties, including the Republican National Committee, the
National Republican Congressional Committee, and the Congressional Committee’s former
redistricting coordinator Adam Kincaid. The third parties resisted, claiming First Amendment
privilege. See AFL-CIO v. FEC, 333 F.3d 168, 175–76 (D.C. Cir. 2003). The district court rejected
their arguments and compelled discovery. After a trial, the court ruled that Ohio’s congressional
districting map was an unconstitutional partisan gerrymander. Less than two months later,
however, the Supreme Court held that partisan gerrymandering claims amounted to political
questions beyond the reach of the federal courts. Rucho v. Common Cause, 139 S. Ct. 2484, 2506–
07 (2019). In response, the district court dismissed the case.
No one appeals that decision. The third parties instead appeal the discovery orders.
Article III of the United States Constitution limits federal courts to resolving “Cases” and
“Controversies.” U.S. Const. art. III, § 2. Both sides must have concrete interests in the outcome
throughout the dispute. If one side loses a stake in the outcome, or it becomes “impossible” for
the Court to grant any “meaningful relief,” we must dismiss the case as moot. Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).
With respect to public documents, we cannot grant meaningful relief. There’s not much a
court can do about preserving the confidentiality of information “widely available to the public.”
Doe No. 1 v. Reed, 697 F.3d 1235, 1240 (9th Cir. 2012). Here, the Randolph Institute used 61 of
these documents as exhibits at the (fully public) trial, which required filing a complete set of paper
copies with the district court. The third parties concede that these documents are now accessible
to the public. And they concede that a complete transcript of Adam Kincaid’s deposition is
publicly accessible on the district court’s online docket. With respect to these public documents,
this appeal is moot.
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Case No. 19-3551, Ohio A. Philip Randolph Inst., et al. v. Larry Obhof, et al.
With respect to the documents that remain confidential, this appeal is moot for a different
reason: The third parties have already gotten everything they could ask for. Parties have an
“obvious possessory interest” in material disclosed during discovery, and courts may vindicate
that interest by ordering the other side to destroy “any and all copies it may have in its possession.”
Church of Scientology of Cal., 506 U.S. at 13. Here, this has already happened. The Randolph
Institute says it has “securely destroyed” “any and all documents” containing the third parties’
confidential information. ROA 29 at 2. And the third parties do not dispute the truthfulness or
completeness of that statement.
The third parties also ask that the Randolph Institute “identify all individuals . . . who had
access to” the confidential documents. Appellant Br. 16. This request is apparently motivated by
a concern that these individuals could use the knowledge gleaned from these documents in future
state court partisan gerrymandering cases. Of course, there is nothing we can do to redress any
injury caused by the spread of knowledge itself; those bells cannot be un-rung. As for the use of
that knowledge, concerns about what might happen in a yet-to-be-filed future lawsuit are typically
not enough to keep a present dispute live. Saginaw County v. STAT Emergency Med. Servs., Inc.,
946 F.3d 951, 959 (6th Cir. 2020). That is particularly true here, where the third parties could
easily identify illicit use and get a remedy from the court. The protective order bars all who
received these documents from using them for any purpose other than “preparing for or conducting
this litigation,” and it remains fully binding and enforceable into the future. R. 57 at 5.
The appeal is moot, but our work is not quite done. When a case becomes moot on appeal,
we typically vacate the district court’s order. United States v. Munsingwear, Inc., 340 U.S. 36,
39–41 (1950). That is because it usually “makes little sense to compel the losing party to live with
the precedential and preclusive effects of the adverse ruling without having had a chance to appeal
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Case No. 19-3551, Ohio A. Philip Randolph Inst., et al. v. Larry Obhof, et al.
it.” Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011); see
Munsingwear, 340 U.S. at 39–41. These principles apply here. And they apply with extra force,
as the third parties tried to appeal earlier and we dismissed for lack of jurisdiction, telling them to
wait until final judgment. Ohio A. Philip Randolph Inst. v. Larose, 761 F. App’x 506, 507–08 (6th
Cir. 2019).
We vacate the two challenged discovery orders.
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