State ex rel. Media & Democracy Ctr. v. Atty Gen. ( 2023 )

[Cite as State ex rel. Media & Democracy Ctr. v. Atty Gen., 2023-Ohio-364.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel., :
Center for Media and Democracy et al.,
: No. 20AP-554
Relators,
: (REGULAR CALENDAR)
v.
:
The Office of Attorney General David Yost,
:
Respondent.
:
D E C I S I O N
Rendered on February 8, 2023
On brief: The Gittes Law Group, Frederick M. Gittes, and
Jeffery P. Vardaro for Relators.
On brief: Dave Yost, Attorney General, Ann Yackshaw, and
Bridget C. Coontz for Respondent.
IN MANDAMUS
ON MOTION TO SET ASIDE THE MAGISTRATE'S ORDER
MENTEL, J.
{¶ 1} Respondent, David Yost, filed a motion under Civ.R. 53(D)(2)(b) to set aside
the magistrate's order of September 20, 2021. The magistrate denied respondent's motion
for a protective order seeking to prevent relators, the Center for Media and Democracy and
David Armiak, from deposing him and granted relators' motion to compel discovery
responses to a number of interrogatories and requests for production of documents
("RFPs"). For the reasons that follow, respondent's motion to set aside the magistrate's
order is denied.
{¶ 2} On March 10, 2020, relators submitted a public records request seeking:
No. 20AP-554 2
[A] copy of all records that pertain to the Republican Attorneys
General Association (RAGA), Rule of Law Defense Fund
[RLDF], and the RAGA Winter Meeting held February 29
through March 2 from the Office of Attorney General Dave
Yost. The scope of this request includes the Attorney General
and Chief of Staff. The scope of this request should include but
is not limited to emails, attachments, both sent and received,
all draft records, briefing books, memos, notes, minutes,
scheduling records, text messages, other correspondence
(internal and external) and all other records.
(Dec. 1, 2020 Compl. at ¶ 5.)
{¶ 3} On March 30, 2020, respondent replied via email, refusing the request
because the requested records were "exempt from disclosure" and "not a record of" the
Attorney General's Office. Id. at ¶ 6. On June 10, 2020, relators sent an email reply asking
for reconsideration of the denial and elaborated their position that the requested records
fell within the scope of the definition of public records subject to disclosure. Id. at ¶ 8.
{¶ 4} On July 13, 2020, respondent again denied the request, reiterating the
position that the records requested did not meet the definition of public records. Id. at ¶ 10.
In addition, respondent stated that "no such email, text, drafts, memo, minutes, or other
correspondence records" existed. Id.
{¶ 5} On December 1, 2020, relators filed a complaint for a writ of mandamus,
arguing that respondent had violated its duty of disclosure under R.C. 149.23. In the
complaint, relators described Republican Attorneys General Association ("RAGA"), and the
Rule of Law Defense Fund ("RLDF"), as "extremely influential pressure groups whose
shared mission is to advance the interests of their corporate patrons and other right-wing
causes, including the electoral interests of the national Republican party, by leveraging the
official powers of state attorney general offices." Id. at ¶ 13. Relators alleged that a number
of respondent's official actions, including signing letters to the United States Congress
advocating for the acquittal of President Donald Trump during impeachment proceedings
and business liability exceptions during the COVID-19 pandemic, "were drafted and
coordinated with RAGA's assistance." Id. at ¶ 20. Relators also alleged that respondent
had "coordinated" with RAGA and other attorneys general in the drafting, signing, and
presentation of amicus briefs in high profile litigation. Id. Relators accused respondent of
attempting to obscure his relationship with RAGA and RLDF, based on those organizations'
No. 20AP-554 3
encouragement and "redactions" in respondent's calendar that coincided with "dates on
which RAGA and RLDF events were held." Id. at ¶ 26. Relators alleged that in "separate
litigation involving other state attorneys general," they had "obtained multiple email
communications between RAGA and RLDF and Yost regarding policy discussions
implicating the public functions of the Respondent, none of which were produced" in
response to their requests. Id. at ¶ 27. Relators alleged that respondent had "deliberately
withheld written communications and other records" and accordingly sought a writ of
mandamus ordering disclosure under R.C. 149.43. Id. at ¶ 28.
{¶ 6} Respondent filed a motion to dismiss on January 5, 2021. He argued that the
relators' "request had nothing to do with the function of the Attorney General's office"
because it "relate[d] to independent, outside organizations," not respondent, his office, or
"the manner in which the office carries out its function." (Jan. 5, 2021 Mot. to Dismiss at
12.) Respondent also argued that relators had requested documents "that do not exist.
These records cannot be produced." Id. at 18.
{¶ 7} Relators argued in response that the arguments for dismissal relied upon
post-discovery case law, and that the proper standard of review on a motion to dismiss
required assuming as true the allegation in their complaint that respondent "withheld
records based on a claim that they did not meet the definition of public records." (Jan. 21,
2021 Brief in Opp. at 10.)
{¶ 8} The magistrate denied respondent's motion to dismiss on February 24, 2021.
After "examin[ing] relators' complaint to determine if it states a claim for a writ of
mandamus on its face," as well as the alleged correspondence between the parties that
precipitated the filing of the complaint, the magistrate concluded that respondent had
"asserted two inconsistent positions" when denying the request. (Feb. 24, 2021 Mag.'s
Order at 2, 5.) "[F]irst, that no such records existed, and second, that the requested records,
on their face, were exempt from production as public records and would not be furnished."
Id. at 5. He concluded that relators had stated a claim for the production of public records
under R.C. 149.43, because "[f]rom the face of the complaint and attached documents, it
cannot be ascertained whether the records are exempt from disclosure or do not exist." Id.
{¶ 9} Respondent filed an answer on March 25, 2021. Discovery commenced, but
respondent filed a motion for a protective order under Civ.R. 26(C) on June 18, 2021,
No. 20AP-554 4
seeking an order preventing relators from deposing him and Solicitor General Benjamin
Flowers. The same day, relators filed a motion captioned "Relators' Motion to Compel
Interrogatory Answers and Production of Documents and Expand Production of Records
for In Camera Inspection." (June 18, 2021 Relators' Mot. to Compel.)
{¶ 10} The magistrate resolved the parties' dispute over these issues in an order filed
September 20, 2021. In the order, he sustained relators' request to compel answers to
Interrogatories Two, Four, and Five, but overruled their request to compel an answer to
Interrogatory Six. Concerning the RFPs, the magistrate ordered 1-5, 9, 15, and 16 to be
produced for in-camera review; ruled that number 13 was moot; sustained numbers 10 and
11, "to a limited extent," based on a forthcoming "detailed answer" from respondent;
sustained relators' motion to compel requests 6, 7, 8, and overruled the request for number
14. Finally, the magistrate overruled respondent's motion for a protective order preventing
his deposition, but sustained the motion as to Solicitor General Benjamin Flowers. (Sept.
30, 2021 Mot. to Set Aside at 22-23.)
{¶ 11} On September 30, 2021 respondent filed a motion to set aside the
magistrate's order pursuant to Civ.R. 53(D)(2)(b). Respondent asks this court to set aside
the order compelling discovery responses and the order compelling him to appear for a
deposition.
{¶ 12} Civ.R. 53(D)(2)(a)(i) allows "a magistrate [to] enter orders without judicial
approval if necessary to regulate the proceedings and if not dispositive of a claim or defense
of a party." The rule also states that, "[a]ny party may file a motion with the court to set
aside a magistrate's order. The motion shall state the moving party's reasons with
particularity and shall be filed not later than ten days after the magistrate's order is filed."
Civ.R. 53(D)(2)(b).
{¶ 13} We begin by addressing Interrogatory Two and RFPs 6-8 together because
the magistrate's order and the parties' arguments concerning them are interrelated.
Interrogatory Two states:
2. Identify each and every person employed by the Office of the
Ohio Attorney General who did any of the following in the years
2019-2021:
a. Communicated in any form with representatives, officers,
and/or employees of RAGA and/or RLDF.
No. 20AP-554 5
b. Attended any meeting and/or conference sponsored in
whole or part by RAGA and/or RLDF.
c. Requested, received, and/or assisted in processing any
reimbursement of expenses by RAGA and/or RLDF.
d. Drafted and/or assisted in drafting documents (including
briefs, letters, and/or press releases) that involved other
Republican state attorneys general and/or their offices in any
way (including by signing, co-authoring, drafting, and/or
revising).
e. Received, sent, and/or were copied on requests to and/or
from RAGA, RLDF, and/or other Republican state attorneys
generals and/or their offices seeking cooperation and/or
participation in litigation, amicus curiae filings, lobbying,
petition, and/or corresponding with government bodies.
f. Accessed any RAGA and/or RDLF online "briefing room" or
other file-sharing system sponsored, hosted, and/or arranged
by RAGA and/or RLDF.
{¶ 14} RFPs 6-8 state:
6. For the period January 14, 2019, to the present, produce any
and all documents generated and/or received by the
Respondent and/or any of Respondent's employees concerning
and/or related to the planning, coordination, preparation,
circulation, and/or signature of any and all letters signed by the
Respondent (and/or presented to the Respondent for
consideration of signing) together with any one or more other
Republican state attorneys' general and/or attorney general
candidates.
***
7. For the period January 14, 2019, to the present, produce any
and all documents generated and/or received by the
Respondent and/or any of Respondent's employees concerning
and/or related to the planning, coordination, preparation,
circulation, and/or signature of any and all amicus briefs
signed by the Respondent (and/or presented to the
Respondent for consideration of signing) together with any one
or more other Republican state attorneys' general and/or
attorney general candidates.
***
8. For the period January 14, 2019, to the present, produce any
and all documents generated and/or received by the
Respondent and/or any of Respondent's employees regarding
in-person and/or remotely conducted meetings, briefings,
No. 20AP-554 6
seminars, and/or continuing education events the Respondent
and/or the Respondent's staff was invited to, agreed to attend,
and/or did attend that any one or more other Republican state
attorneys' general, attorney general candidates, and/or
members of their staff also attended, including but not limited
to all invitations and/or other communications, minutes,
notes, sign-in sheets, PowerPoints and/or other slide decks,
and/or handouts.
(June 18, 2021 Respondent's Answer/ Objs. to Relators' First Set of Interrogs.
27-33.)
{¶ 15} The magistrate granted relators' motion to compel responses to Interrogatory
Two, reasoning as follows:
The magistrate agrees with relators that part of respondent's
answer to Interrogatory Two confuses matters by considering
the interrogatory as another public records request rather than
discovery pursued by relators in order to ascertain the
public/non-public nature of the records sought in the
underlying request. While respondent is correct that "the
Public Records Act does not mandate that a public office seek
out and provide information of interest to the requester, such
as the identification of certain persons," discovery proceedings
in this mandamus action might require exactly that. Relators
are not limited to the described records in the underlying
public records. * * *
The magistrate also disagrees with respondent's assertion that
Interrogatory Two is overbroad in relation to the core issue in
the case. Again, relators are entitled to obtain discovery to
challenge the factual basis for respondent's refusal to provide
the requested records, and the interrogatory request is
proportional to that determination. See, generally, State ex rel.
Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-
6365, ¶ 36-37; State ex rel. Batt Law Group, LLC v. Ohio Dept.
of Natural Resources, 10th Dist. No. 12AP-448, 2013-Ohio-
5219, ¶ 18. Identifying staff who, in the course of their agency
duties, attend RAGA- and RLDF-related functions is relevant
to evaluating respondent's claim that these organizations are
unrelated to his official duties. Relators are therefore entitled
to an order compelling an appropriate response to
Interrogatory Two providing the requested information.
(Sept. 20, 2021 Mag.'s Order at 4-5.)
No. 20AP-554 7
{¶ 16} The magistrate referred to this reasoning when granting relators' request to
compel responses to the RFPs:
Requests for Production 6, 7, and 8 seek all documents from all
staff related to planning, attendance, preparation, and
signature of letters, amicus briefs, and events attended or
prepared in conjunction with other RAGA members. For the
reasons stated in evaluating relators' Interrogatory 2, the
motion to compel is granted for these and respondent will
furnish the requested documents.
(Mag.'s Order at 7.)
{¶ 17} Respondent argues that the magistrate's order compelling responses to RFPs
6-8 should be set aside because the order is incongruent with relators' discovery requests.
Citing the magistrate's reference to "other RAGA members," respondent argues that the
magistrate's order "modified" the RFPs because " 'RAGA members' and 'Republican state
attorneys general and/or attorney general candidates' are not coextensive groups." (Mot.
to Set Aside at 14-15.) Accordingly, respondent requests that we "clarify what exactly
Respondent has been compelled to do." (Emphasis deleted.) Id. at 15.
{¶ 18} We do not believe that the magistrate's summarization of RFPs 6-8 indicates
that he actually sought to alter or "modify" their scope. The reasoning he set forth when
compelling a response to Interrogatory Two expressly rejected respondent's argument that
the scope of discovery should encompass no more than the public records request itself,
and Interrogatory Two itself included references to other Republican state attorney
generals, not just RAGA or RLDF members. The magistrate was unequivocal when
concluding that a discovery request was overbroad. (See Mag.'s Order at 6 (agreeing with
respondent that Interrogatory Six was "overbroad on its face.")). If respondent is confused
by the scope of the discovery requests he had been compelled to respond to, he need only
to consult them as written.
{¶ 19} Respondent also argues that RFPs 6-8 are not proportional to the needs of
the case, as Civ.R. 26(B)(1) requires. "The central issue" of relators' case, respondent
argues, is whether he "or his Chief of Staff have records relating to RAGA, RLDF or the
RAGA Winter Meeting. Whether the hundreds of other AGO employees attended an event
with an employee of another Republican attorney general's office or helped them to prepare
No. 20AP-554 8
a letter or amicus brief sheds little light on whether the Attorney General or Chief of Staff
have responsive records." (Emphasis sic.) (Mot. to Set Aside at 16.)
{¶ 20} Civ.R. 26(B)(1) states:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information,
the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
{¶ 21} When considering the factors laid out in the rule to determine whether a
discovery request is proportional to the needs of the case, respondent's argument appears
to invoke only "the importance of discovery in resolving the issues." (Mag.'s Order at 2.)
In other words, respondent appears to argue that the documents described in RFPs 6-8
would not resolve the issue of whether the documents sought exist, and are therefore not
proportional to the needs of the case.
{¶ 22} Respondent's argument is functionally indistinguishable from that rejected
by the magistrate in that respondent is, once again, attempting to restrict the scope of
discovery so that it is coterminous with the records request itself. The parties are engaged
in discovery and "discovery is generally permissible in mandamus actions." State ex rel.
Marchiano v. School Emps. Retirement Sys., 121 Ohio St.3d 139, 2009-Ohio-307, ¶ 24. See
also Civ.R. 1(A) (stating that the Ohio Rules of Civil Procedure apply "in all courts of this
state in the exercise of civil jurisdiction at law or in equity," subject to exceptions) and
Loc.R. 2(B) ("The Ohio Rules of Civil Procedure, as supplemented hereby, shall govern
procedure in original actions filed in this Court."). Thus, relator is permitted to seek "any
nonprivileged matter that is relevant to any party's claim or defense and proportional to the
needs of the case," the scope of which is necessarily broader than the "claim" itself for the
records requested under R.C. 149.43. (July 6, 2021 Relators' Reply Memo at 6.)
{¶ 23} RFPs 6-8, which seek, as the magistrate summarized, "all documents from all
staff related to planning, attendance, preparation, and signature of letters, amicus briefs,
and events attended or prepared in conjunction with other RAGA members," are
proportional to relators' allegations as stated in the complaint. (Mag.'s Order at 7.) There,
No. 20AP-554 9
relators allege that "RAGA and RLDF coordinate" the joint litigation engaged in by not only
respondent but "other state attorneys general," with reference to specific amicus briefs and
letters that this alleged coordination produced. (Compl. at ¶ 16-21.) The allegations include
coordination among aides and staff. Id. at ¶ 25-27. Relators allege, based on "multiple
email communications between RAGA and RLDF and Yost" already obtained in other
litigation that "Respondent has deliberately withheld written communications and other
records documenting the participation of Yost and his staff in activities of RAGA and
RLDF." (Emphasis sic.) Id. at ¶ 27-28. Relators' requests for documents are proportional
to resolving these issues, and the magistrate did not err by compelling their production.
{¶ 24} For the same reasons, relators' Interrogatory Two, which seeks the identity
of persons employed by the Office of the Ohio Attorney General who communicated with
RAGA and RLDF members, attended RAGA and RLDF conferences, or were variously
associated with producing or sending or receiving documents for those organizations, is not
overbroad or disproportional to the issues discovery may address. (Mot. to Set Aside at
28.) This conclusion is not theoretical. Relators' supplemental filings since respondent
filed the motion to set aside the magistrate's order have revealed a number of disclosed
emails, both on private and state accounts, between respondent and his staff
communicating about and coordinating attendance at RAGA and RLDF events. (Feb. 9,
2022 Relators' Supp. Memo in Opp. to Respondent's Mot. to Set Aside Mag.'s Order, Exs.
1A-1K, hereinafter "Relators' Supp. Memo.")
{¶ 25} Respondent describes the "burden of complying with RFPs 6-8" as
"astronomical," and gives as "one example among potentially thousands to illustrate this
point" the documents generated in planning an event entitled the Robocall Virtual Summit.
(Mot. to Set Aside at 16.) RFP 8 demands that respondent "produce any and all documents
generated" by him or his staff concerning "meetings, briefings, seminars, and/or continuing
education events the Respondent and/or the Respondent's staff was invited to, agreed to
attend, and/or did attend that any one or more other Republican state attorneys' general,
attorney general candidates, and/or members of their staff also attended." (Respondent's
Answer/ Objs. to Relators' First Set of Interrogs. at 33.) But the Robocall Virtual Summit
involved not only other Republican attorneys general, but a host of other persons, such as
"Consumer Protection staff members soliciting speakers and requests to various state
No. 20AP-554 10
supreme courts," that generated a trove of documents when preparing the event that would
be irrelevant to relators' claims. (Mot. to Set Aside at 17.)
{¶ 26} Relators admit that the scope of documents respondent describes "would
include not only information about his interactions with RAGA and RLDF, and RAGA's
members (the other Republican state attorneys general) and staff, but also various
multistate efforts through the National Association of Attorneys General (NAAG) and other
initiatives that have included Democratic attorneys general." (Oct. 22, 2021 Relators'
Memo in Opp. to Respondent's Mot. to Set Aside Mag.'s Order, hereinafter "Memo in Opp."
at 18.) According to relators, this is an unintended consequence of their request. However,
they claim that respondent never described this potential burden in any of the parties'
discovery discussions, in his previous objections to discovery requests, in the conference
with the magistrate, or in his "extensive briefing" to the magistrate. Id. at 18-19. If
respondent had raised the issue at those times, relators assert that they "would not have
hesitated to narrow their requests." Id. at 20. Respondent's reply does not counter the
assertion that the burden he describes is being raised now for the first time. (See Nov. 18,
2021 Respondent's Reply in Support of His Mot. to Set Aside the Mag.'s Order at 10-14.)
{¶ 27} Civ.R. 26(B)(5) states: "On motion to compel discovery or for a protective
order, the party from whom discovery is sought must show that the information is not
reasonably accessible because of undue burden or cost." This is logical because "[a] party
requesting discovery * * * may have little information about the burden or expense of
responding." (Civ.R. 26, Staff Notes to July 1, 2020 Amendment.) Any such "uncertainties
should be addressed and reduced in the parties' Civ.R. 26(F) conference and in scheduling
and pretrial conferences with the court." Id. It was respondent's duty to inform relators
that the scope of their RFPs, as drafted, might balloon the scope of discoverable documents
to potentially include all attorneys general office employees in the nation.
{¶ 28} Relators have offered a solution to this impasse in their briefing:
The Relators intended to ask only for responsive information
relating to initiatives and projects (such as briefs, regulatory
filings, and letters) involving only Republican attorneys
general (i.e., those projects most likely to have involved
coordination by RAGA/RLDF). They thus waive the
enforcement of the Magistrate's order to the extent it would
require the production of documents and information as to
No. 20AP-554 11
initiatives projects involving both Democratic and Republican
attorneys general.
(Emphasis sic.) (Relators' Memo in Opp. at 20.)
{¶ 29} Respondent does not challenge the adequacy of relators' concession in his
reply briefing. Accordingly, we deem it tacitly accepted and consider the issue of the scope
of RFPs 6-8 settled.
{¶ 30} We now turn to respondent's challenge to the magistrate's order concerning
RFPs 10 and 11. RFP 10 states:
For the period January 14, 2019, to present produce any and all
e-mail and/or text messages, relating in any way to the topics
listed in Requests for Production Nos. 1 through 8, above,
stored on the computers and/or mobile devices of, and/or sent
or received (including by "cc" or "bcc") using any personal,
business, campaign, and/or state-provided e-mail and/or
mobile account of the following:
a. Dave Yost
b. Benjamin Flowers
c. Benjamin Marrison
d. Amy Sexton
e. Each other person identified in response to
Interrogatory 2.
{¶ 31} RFP 11 states:
For the period January 14, 2019, to present produce any and all
e-mails, text messages, and/or word-processing files (such as
files created by Microsoft Word, Excel or PowerPoint),
containing the terms "RAGA," "RLDF," "Republican Attorneys
General Association," "Rule of Law Defense Fund," "Piper,"
"apiper", "Jason Heath", "jheath", "Bisbee", "pbisbee",
"Amanda Gonzalez", "agonzalez", "Ashley Highlander",
"ahighlander", "Collins Atkinson", any email ending in
"@republicanags.com" or "@rldf.org", noreply@wufoo.com",
"impeach", "impeachment", "war games", "Michael Flynn",
"Mike Flynn", "Armiak", and/or "Center for Media and
Democracy", stored on the computers and/or mobile devices
of, and/or sent or received (including by "cc" or "bcc") using
any personal, business, campaign, and/or state e-mail and/or
mobile account of the following:
a. Dave Yost
b. Benjamin Flowers
No. 20AP-554 12
c. Benjamin Marrison
d. Amy Sexton
e. Each other person identified in response to
Interrogatory 2.
{¶ 32} When ordering compliance with the foregoing RFPs, the magistrate stated:
Requests for Production 10 and 11 seek the production of
emails related to the subject matter of certain targeted search
terms including RAGA and RLDF, and certain names. Again,
respondent objected to the requests as unduly burdensome and
not proportional to the needs of the case. For these
interrogatories [sic], relators' motion to compel is granted to a
limited extent. Respondent will provide a detailed answer
regarding which of the search terms would generate unduly
broad results, and, consistent with the deposition testimony of
respondent's scheduling assistant, Amy Sexton, conduct
searches of personal and public email accounts containing the
pertinent information.
(Mag.'s Order at 7.)
{¶ 33} Respondent describes the magistrate's order to compel compliance with RFP
10 as "nonsensical," claiming that it would "result[] in absurdity and should be set aside."
(Mot. to Set Aside at 21.) According to respondent, complying with the order is
"impossible" because "RFP 10 includes no search terms." Id. He claims that he "cannot
provide any details as to the burden generated by RFP 10's search terms because no such
search terms exist." Id. at 21-22.
{¶ 34} Respondent's argument misreads the magistrate's order. The order
addresses both RFPs 10 and 11 together. RFP 11 contains a plethora of search terms that
are clearly what the magistrate references in the order. RFP 10 incorporates by reference
the "topics" of RFPs 1-8, such as RAGA and RLDF (RFP 1), the 2020 RAGA winter meeting
(RFP 2), the RAGA 20th anniversary celebration and other RAGA and RLDF events (RFP
3), the "RAGA online 'briefing room' " (RFP 4), and travel expense documents from such
events (RFP 5). The topics of RFP 6-8 have previously been discussed. RFP 10 specifically
requests documents on such topics from the email and mobile accounts of the specific
persons list. These persons are what the magistrate's order refers to when it mentions
"certain names" in both RFP 10 and 11, both of which are directed at those persons' email
and mobile accounts. We read the magistrate's order as giving respondent the opportunity
No. 20AP-554 13
to make the case that the results generated would be of such overwhelming quantity and
irrelevance that they might be considered "unduly broad."
{¶ 35} In challenging the magistrate's order compelling a response to RFP 11,
respondent argues that searching the email accounts referenced with the search terms
listed would be burdensome and of "minimal benefit." (Mot. to Set Aside at 23.) He argues
that "[t]he record in this case establishes that the Attorney General and Chief of Staff do not
maintain public records on their personal accounts." Id. He cites his own statement in "a
sworn affidavit that he regularly forwards documents with public records content from his
personal devices and private accounts to AGO employees or his own official account," and
similar statement of his Chief of Staff. Id. Respondent claims that, "both officials searched
their private accounts and found no responsive public records." Id.
{¶ 36} These assertions are partially confirmed, but also partially undermined, by
the disclosure of a number of documents disclosed to relators after respondent partially
complied with RFP 11. In a letter to relators' attorney, counsel for respondent
acknowledged that "the keyword searches have been completed" for "Attorney General Yost
and Chief of Staff Marrison's AGO accounts." (Relators' Supp. Memo, Ex. 1., at 1-2.) The
searches resulted in "a set of 11 documents" that included ones "responsive to the initial
public records request and should have been produced when then request was made in
March 2020." Id. The searches of the state email accounts of respondent and his Chief of
Staff produced emails sent to and received from both the private and state accounts of
respondent and the private account of Amy Sexton. (Relators' Supp. Memo, Ex. 1A, Ex. 1B,
& Ex. 1C.) Because the searches have been completed for relator and his Chief of Staff's
state email accounts, the RFP has been partially complied with. However, the fact that the
searches uncovered documents not merely responsive to the discovery request but also to
the original public records request contradicts respondent's claim that they would be of
"minimal benefit." (Mot. to Set Aside at 23.) Furthermore, the documents produced from
just respondent's state email account demonstrate that at least one of his employees is using
a personal email account to create discoverable documents. (Relators' Supp. Memo, Ex.
1A.) Accordingly, we decline to set aside the magistrate's order compelling respondent to
comply with RFP 11 in its entirety.
No. 20AP-554 14
{¶ 37} Respondent also argues that the magistrate's order should be set aside to the
extent it compels production of documents that postdate relators' original public records
request. (Mot. to Set Aside at 30.) Respondent cites State ex rel. Hogan Lovells U.S., L.L.P.
v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, ¶ 29, in which the Supreme
Court of Ohio held that a requestor of public records in a mandamus action under R.C.
149.43 was only entitled to records created before the date of the request.
{¶ 38} Again, respondent is attempting to constrain the scope of discovery under
Civ.R. 26 with reference to the substantive law governing public records disclosure. The
scope of discovery defined under Civ.R. 26(B)(1), " any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case," contains no post-
complaint temporal restriction. We are not persuaded that "the date on which the
complaint was filed is some sort of talismanic date after which no relevant documents could
possibly have been produced." Wilmington Trust Co. v. AEP Generating Co., S.D.Ohio No.
2:13-cv-01213, 2016 U.S. Dist. LEXIS 28762, *8-9 (Mar. 7, 2016). "It is not uncommon for
a document to refer to events which occurred days, months, or even years before, so even if
the filing date of a complaint represents the last date on which relevant actions were taken,
it does not necessarily represent the last date on which relevant documents were created."
Id. Civ.R. 26 provides sufficient grounds for ruling that a document is not subject to
disclosure without creating an arbitrary rule arising from the date a complaint is filed.
Furthermore, respondent fails to cite a single document created after relators filed their
case that should be subject to such a rule. Accordingly, the issue is hypothetical and
provides no basis for setting aside the magistrate's order.
{¶ 39} Finally, we turn to the issue of respondent's deposition. The magistrate
overruled respondent's motion for a protective order that would shield him from a
deposition, but sustained the motion as it related to relators' request to depose Solicitor
General Benjamin Flowers. Respondent argues that the magistrate's order "misapplies the
law, misstates the record, and must be set aside." (Mot. to Set Aside at 5.)
{¶ 40} In State ex rel. Summit Cty. Republican Party Executive Commt. v. Brunner,
117 Ohio St.3d 1210, 2008-Ohio-1035, ¶ 4, the Supreme Court of Ohio held that four factors
must be weighed when determining whether to order the deposition of a high-ranking
elected official. The factors to be weighed are "the substantiality of the case in which the
No. 20AP-554 15
deposition is requested; the degree to which the witness has first-hand knowledge or direct
involvement; the probable length of the deposition and the effect on government business
if the official must attend the deposition; and whether less onerous discovery procedures
provide the information sought." Id., quoting Monti v. State, 151 Vt. 609, 613-14 (1989).
{¶ 41} Respondent first argues that the magistrate "fails to say" what the
substantiality of the case even is. (Mot. to Set Aside at 7.) The magistrate stated: "The
question of whether the Ohio Attorney General's documents and materials pertaining to his
participation in the activities of organizations related to, but not officially a part of, his
duties is facially important enough to support a deposition in this case if the other factors
are met." (Mag.'s Order at 9.)
{¶ 42} According to respondent, "[t]his difficult-to-parse sentence neglects to define
the underlying 'question' the magistrate found substantial." (Mot. to Set Aside at 7.) Thus,
"Respondent suggests that the underlying question is whether the documents found in the
office's search for records and submitted for in camera review are records or non-records."
(Emphasis sic.) Id. We think this interpretation would be obvious after reading the citation
immediately preceding the sentence that respondent is unable to parse. The magistrate
referred to State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d
63, 2017-Ohio-8988, ¶ 10, which acknowledged that the question of "whether autopsy
reports in open homicide investigations are public records and therefore available for
public inspection" was an issue of "great public importance." Thus, even the question of
whether or not a document qualifies as a public record under R.C. 149.43 may be
considered of great public importance. Id. We find no fault with the conclusion that the
issue of whether the documents relators seek are public records is one of great public
importance, and this supports a finding of substantiality under the first Brunner factor.
{¶ 43} The second Brunner factor to consider is "the degree to which the witness has
first-hand knowledge or direct involvement." Brunner at ¶ 4. The magistrate concluded
that "the definition of what constituted responsive documents was necessarily the primary
defining factor that underlay the ministerial or clerical process of a search conducted by
respondent's staff, and respondent is the only person who can explain the elaboration of
that definition." (Mag.'s Order at 9.)
No. 20AP-554 16
{¶ 44} Respondent criticizes the magistrate's assertion: "Even assuming this
statement correctly conveys what sort of first-hand knowledge a public records case calls
for, the statement does not fit the factual record." (Mot. to Set Aside at 9.) As support, he
cites his affidavit claiming that he forwards all public records "from his personal emails and
texts to his AGO account," and the fact that initial searches by his staff failed to uncover
"any responsive records." Id. at 9-10. This argument blurs the distinction between the
definition of a public record, which is a legal conclusion, with the results of keyword
searches. A database search might uncover documents, but someone must make the
determination of whether those documents qualify as a public record under R.C. 143.49.
Relators' complaint was prompted by respondent's refusal to provide records because he
asserted that they both did not exist and did not qualify as public records. The magistrate
was not wrong in assuming that respondent himself has firsthand knowledge of the grounds
for taking this position.
{¶ 45} Respondent's assertion concerning the record has also been superseded by
its development since filing his motion. The emails unearthed in response to RFP 11
demonstrate that he not only forwards emails to his state account from his private ones,
but that he also sends them to his private account. (Relators' Supp. Memo, Exs. 1C & 1D.)
This is inconsistent with the assertion in his affidavit that emails are only forwarded to his
state account. If anything, the indicia of respondent's firsthand knowledge of the records
relators seek has grown since the magistrate ordered his deposition.
{¶ 46} Under the third Brunner factor, "the probable length of the deposition and
the effect on government business if the official must attend the deposition" must be
considered. Brunner at ¶ 4. The magistrate stated that respondent "presents no real
argument that a reasonably conducted deposition, arranged at his convenience, would
disrupt the conduct of his official duties." (Mag.'s Order at 9.)
{¶ 47} Respondent claims, without citation to where in the record it exists, that this
court "has received the Attorney General's calendar and can see for itself that a deposition,
building in time for preparation with and without counsel, document review, and transcript
review, would disrupt his packed, travel-intensive schedule."1 (Mot. to Set Aside at 11.) This
1The only exhibit attached to respondent's Motion to Set Aside is 34 pages documenting the Attorney General
Office's document retention schedules.
No. 20AP-554 17
claim is difficult to evaluate without a more concrete illustration of the burden a short
deposition would impose. A short deposition is what relators envision, as they cite to the
fact that the other three depositions conducted in this case clocked in at around two hours
each. (Relators' Memo in Opp. at 14.) They also offer to take the deposition remotely at
respondent's convenience. Id. We cannot conclude that the third Brunner factor weighs
against upholding the magistrate's order.
{¶ 48} The final factor to consider is "whether less onerous discovery procedures
provide the information sought." Brunner at ¶ 4. The magistrate concluded that "there are
not" because respondent "is, ultimately, the only person qualified to explain the relation
between his RAGA and RLDF activities and the public functions of the office." (Mag.'s
Order at 9.)
{¶ 49} Respondent argues that the magistrate's reasoning "misses the point"
because he "confuses discovery into the existing responsive records, which is permissible,
with discovery into relationships, which is not." (Mot. to Set Aside at 12.) Respondent cites
the definition of a public record under R.C. 149.011(G), ("any document, device, or item,
regardless of physical form or characteristic, including an electronic record * * * created or
received by or coming under the jurisdiction of any public office of the state or its political
subdivisions, which serves to document the organization, functions, policies, decisions,
procedures, operations, or other activities of the office"), as the sole support for this
contention.
{¶ 50} Respondent's attempt to cabin the definition of what is permissible discovery
with public records law is, by now, a familiar argument in the parties' dispute. For the
reasons previously discussed, we reject this artificial limitation. Furthermore, as relators
point out, it is respondent's relationship with the organizations in question that he has
consistently pointed to as the basis for asserting that the documents they seek are not public
records. (Relators' Memo in Opp. at 16.) Relators are entitled to probe these justifications,
and the answers are not available through less onerous discovery procedures.
{¶ 51} After consideration of the Brunner factors, we conclude that the magistrate
properly ordered his deposition. Respondent is not entitled to have the magistrate's order
set aside on any of the grounds proposed and is accordingly overruled.
Motion denied.
No. 20AP-554 18
BEATTY BLUNT, P.J., concurs.
KLATT, J., dissents.
KLATT, J., dissenting.
{¶ 52} Because I would grant respondent's motion to set aside the magistrate's order
pursuant to Civ.R. 53(D)(2)(b), I respectfully dissent.
A. Deposition of the Ohio Attorney General
{¶ 53} Before permitting the deposition of a high-ranking government official, the
Supreme Court of Ohio appears to require "extraordinary circumstances" to justify the
deposition. State ex rel. Summit Cty. Republic Party Executive Commt. v. Brunner, 117
Ohio St.3d 1210, 2008-Ohio-1035, ¶ 3. In describing the criteria for assessing whether
extraordinary circumstances justify the deposition, the Supreme Court stated:
"[T]rial courts should weigh the necessity to depose or
examine an executive official against, among other factors, the
substantiality of the case in which the deposition is requested;
the degree to which the witness has first-hand knowledge or
direct involvement; the probable length of the deposition and
the effect on government business if the official must attend
the deposition; and whether less onerous discovery
procedures provide the information sought." Monti v.
State (1989), 151 Vt. 609, 613, 563 A.2d 629, 632. See
also State ex rel. Paige v. Canady (1996), 197 W.Va. 154, 475
S.E.2d 154, paragraph four of the syllabus.
Id. at ¶ 4.
{¶ 54} In the case at bar, relators requested "all records that pertain to the
Republican Attorney General Association (RAGA), Rule of Law Defense Fund [RLDF], and
the RAGA Winter Meeting held February 29 through March 2" from the Ohio Attorney
General and his Chief of Staff. (Dec. 1, 2020 Compl. at ¶ 5.) This public records request,
and the attorney general's response thereto, is the subject of this mandamus action. In my
view, based upon the criteria set forth in Brunner, there is nothing about this case that
presents "extraordinary circumstances" justifying the deposition of Ohio Attorney General.
{¶ 55} First, the underlying legal issue in this case is far from extraordinary or
substantial. Whether or not certain documents are potentially responsive to relators' public
records request, or are not, public records under Ohio law are a straightforward legal
No. 20AP-554 19
question. Nor is there anything about relators' public records request itself that presents a
context that even remotely suggests the presence of extraordinary circumstances.
{¶ 56} Second, it's clear that the attorney general lacks firsthand knowledge of the
public records request and lacks firsthand knowledge of how his staff conducted the search
for potential responsive documents. Nor was the attorney general involved in the
determinations of what documents were or were not deemed public records. These
uncontested facts are in marked contrast to the facts presented in Brunner, where the
secretary of state had firsthand knowledge of an important electoral decision. Here, it is
difficult to conceive what testimony the attorney general could offer relevant to the legal
issue before the court.
{¶ 57} The absence of substantiality and the attorney general's lack of firsthand
knowledge must also be considered in assessing the effect on government business if the
relators are permitted to depose the attorney general. The deposition of a high-ranking
governmental official like a governor or attorney general is a major event and significantly
intrudes upon government business. The time needed for deposition preparation,
document review, consultation with counsel, and transcript review is substantial, and such
a deposition would be a major distraction from official duties. This negative impact on
governmental business seems particularly unjustified given the attorney general's lack of
involvement with this public records dispute.
{¶ 58} Lastly, I believe that the relators has available, and has in fact exercised, far
less onerous discovery devices to acquire information relevant to this public records
dispute. Relators has already taken the deposition of a number of employees of the attorney
general's office who were directly involved in responding to its public records request.
Relators has also availed itself of other discovery devices provided by the civil rules. There
are simply no extraordinary circumstances presented here that justify taking the deposition
of the Ohio Attorney General.
B. Compelling Discovery Responses
{¶ 59} I would also grant respondent's motion to set aside the magistrate's order to
the extent that it compels responses to the disputed discovery requests. These discovery
requests are not proportional to the issue before the court and they are only remotely
relevant to relators' request for documents relating to RAGA, RLDF, or the RAGA winter
No. 20AP-554 20
meeting. Moreover, the scope of the search required to respond to the discovery goes far
beyond the scope of the public records request at issue here. Given the limited nature of
the underlying public records dispute, the disputed discovery requests are not sufficiently
relevant or proportional to the needs of the case in light of the burden and expense of
compliance. It appears that relators' discovery requests are designed to elicit information
about which the relators simply has an interest, rather than information that is likely to be
relevant to the public records dispute at issue here.
{¶ 60} For the foregoing reasons, I respectfully dissent.
_________________
No. 20AP-554 21
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel., :
Center for Media and Democracy et al.,
:
Relators,
:
v. No. 20AP-554
:
The Office of Attorney General David Yost, (REGULAR CALENDAR)
:
Respondent.
:
MAGISTRATE' S ORDER
{¶ 61} Relator submitted a public records request to respondent Dave Yost seeking
the following:
[A] copy of all records that pertain to the Republican Attorneys
General Association (RAGA), Rule of Law Defense Fund
[RLDF], and the RAGA Winter Meeting held February 29
through March 2 from the Office of Attorney General Dave
Yost. The scope of this request includes the Attorney General
and Chief of Staff. The scope of this request should include but
is not limited to emails, attachments, both sent and received,
all draft records, briefing books, memos, notes, minutes,
scheduling records, text messages, other correspondence
(internal and external) and all other records.
(Relator's Compl. at 3-4.)
{¶ 62} Respondent's office answered with an email dated March 30, 2020 stating
that the requested information was "exempt from disclosure as it is not a record of this
office, pursuant to State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160,
2005-Ohio-4384, 833 N.E.2d 274; State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 610
N.E.2d 997 (1993)." Relators restated their request, and received further response by
email dated July 13, 2020 which appeared to shift the emphasis of respondent's response
No. 20AP-554 22
to the public records request to assert that the records were non-existent rather than
merely exempt:
The Ohio Attorney General's Office reviewed your request and
determined that no such email, text, drafts, memo, minutes, or
other correspondence records exist with the Attorney General
and his Chief of Staff and while we understand your position
regarding your request, please note that any other information
does not meet the definition of a record as defined by Ohio's
Public Records Act (Ohio Revised Code Section 149.43). See
State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d
160, 2005-Ohio-4384 (public office has no obligation to
produce items that do not document the organization,
functions, policies, procedures, operations, or other activities
of the office.)
{¶ 63} Relators commenced this mandamus action under R.C. 149.43(C)(1)(b) to
compel compliance with the Public Records Act. Discovery proceedings ensued. Relators
conducted depositions of four members of respondent's staff and served interrogatories
and requests for production. Respondent provided his own affidavit and that of several
staff members. Relators sought to depose respondent personally as well as Solicitor
General Benjamin Flowers.
{¶ 64} Discovery reached an impasse. Counsel and the magistrate held a status
conference leading to the present cross-motions for discovery rulings. Respondent has
submitted a number of documents under seal for in camera inspection.
{¶ 65} Relator seeks to obtain expanded answers to interrogatories already served
and to expand the classes of records made available to the magistrate for in camera
inspection.
{¶ 66} Respondent seeks a protective order for himself and Solicitor General
Flowers to avoid submitting to depositions.
{¶ 67} The parties differ on the extent to which relators may pursue discovery to
establish that the described records exist and should be made available. Original actions
seeking a writ of mandamus from this court are governed by the Ohio Rules of Civil
Procedure. Civ.R. 26(B) permits the discovery of all non-privileged matter "that is
relevant to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy,
the parties' relative access to relevant information, the parties' resources, the importance
No. 20AP-554 23
of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit." The standard used to determine
relevancy for purposes of discovery " 'is much broader than the test to be utilized at trial.
It is only irrelevant by the discovery test when the information sought will not reasonably
lead to the discovery of admissible evidence.' " Tschantz v. Ferguson, 97 Ohio App.3d
693, 715 (10th Dist.1995), quoting Icenhower v. Icenhower, 10th Dist. No. 75AP-93 (Aug.
14, 1975). With respect to depositions, Civ.R. 30(A) provides that after the filing of any
complaint, "any party may take the testimony of any person, including a party, by
deposition upon oral examination."
{¶ 68} Addressing first relators' complaints regarding interrogatory answers and
requests for production, relators specifically quote and object to respondent's answer to
Interrogatory Two:
Identify each and every person employed by the Office of the
Ohio Attorney General who did any of the following in the years
2019-2021:
a. Communicated in any form with representatives, officers,
and/or employees of RAGA and/or RLDF.
b. Attended any meeting and/or conference sponsored in
whole or part by RAGA and/or RLDF.
c. Requested, received, and/or assisted in processing any
reimbursement of expenses by RAGA and/or RLDF.
d. Drafted and/or assisted in drafting documents (including
briefs, letters, and/or press releases) that involved other
Republican state attorneys general and/or their offices in any
way (including by signing, co-authoring, drafting, and/or
revising).
e. Received, sent, and/or were copied on requests to and/or
from RAGA, RLDF, and/or other Republican state attorneys
generals and/or their offices seeking cooperation and/or
participation in litigation, amicus curiae filings, lobbying,
petition, and/or corresponding with government bodies.
f. Accessed any RAGA and/or RLDF online "briefing room" or
other file-sharing system sponsored, hosted, and/or arranged
by RAGA and/or RLDF.
No. 20AP-554 24
{¶ 69} The Respondent stated in response:
Respondent objects to this Interrogatory, including all
subparts, as irrelevant, overly broad, unduly burdensome and
not proportional to the needs of the case. Although Relators'
public records request specifically targeted the records of the
Attorney General and his Chief of Staff, this Interrogatory
includes "each and every person employed by the Office of the
Ohio Attorney General." By including hundreds of employees
beyond the Attorney General and Chief of Staff, this
Interrogatory is not proportional to the needs of this case,
which is limited to whether the Attorney General and Chief of
Staff have records that are responsive to Relators' public
records request. Moreover, the time period of this
Interrogatory encompasses 2019-2021, which is overly broad,
unduly burdensome, and not proportional to the needs of the
case, which is limited to public records that actually existed at
the time of Relator's [sic] request. See, e.g., State ex rel.
Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-
Ohio-6365, 857 N.E.2d 1208, ¶ 30, Sinclair Media III, Inc. v.
City of Cincinnati, Ct. of Cl. 2018-01357PQ, 2019-Ohio-2623,
¶ 6 ("[A] requester must seek specific, existing records.").
Relator's [sic] request was dated March 10, 2020, and this
Interrogatory seeks information postdating the request by
more than a year.
More fundamentally, this Interrogatory seeks the identification
of persons, not specific public records, which is not the sole
subject of this case. The Public Records Act does not mandate
that a public office seek out and provide information of interest
to the requester, such as the identification of certain persons.
See, e.g., State ex rel. McElrath v. City of Cleveland, 8th Dist.
Cuyahoga No. 106078, 2018-Ohio-1753, ¶¶ 18-19 (requests
seeking information such as the names of officers involved in a
police report and information about specific officers were not
proper). Because this Interrogatory seeks the identification of
certain persons, as opposed to specific and existing records, it
is irrelevant, overly broad, unduly burdensome, and not
proportional to the needs of this case.
Absent a court order, Respondent will not answer this
Interrogatory, including its subparts.
{¶ 70} The magistrate agrees with relators that part of respondent's answer to
Interrogatory Two confuses matters by considering the interrogatory as another public
records request rather than discovery pursued by relators in order to ascertain the
No. 20AP-554 25
public/non-public nature of the records sought in the underlying request. While
respondent is correct that "the Public Records Act does not mandate that a public office
seek out and provide information of interest to the requester, such as the identification of
certain persons," discovery proceedings in this mandamus action might require exactly
that. Relators are not limited to the described records in the underlying public records
request when pursuing information that will help determine whether the requested
records are in fact public records, and whether any potentially responsive records have
been withheld. Relators are entitled to reasonable discovery to test respondent's claim
that his relationship with RAGA and RLDF is a purely personal matter unrelated to the
substantive work of his office.
{¶ 71} The magistrate also disagrees with respondent's assertion that
Interrogatory Two is overbroad in relation to the core issue in the case. Again, relators
are entitled to obtain discovery to challenge the factual basis for respondent's refusal to
provide the requested records, and the interrogatory request is proportional to that
determination. See, generally, State ex rel. Morgan v. New Lexington, 112 Ohio St.3d
33, 2006-Ohio-6365, ¶ 36-37; State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural
Resources, 10th Dist. No. 12AP-448, 2013-Ohio-5219, ¶ 18. Identifying staff who, in the
course of their agency duties, attend RAGA- and RLDF-related functions is relevant to
evaluating respondent's claim that these organizations are unrelated to his official duties.
Relators are therefore entitled to an order compelling an appropriate response to
Interrogatory Two providing the requested information.
{¶ 72} Similarly, Interrogatory Four asks respondent to identify RAGA and RLDF
events attended by respondent or the agency's staff during the period from January 14,
2019 through the present, and Interrogatory Five asks respondent to identify court filings,
agency submissions and other interactions with public officials for which RAGA or RLDF
provided drafting or other assistance or input. Respondent's answer to both tracks the
general objections expressed in his response to Interrogatory Two. Both Interrogatory
Four and Interrogatory Five, as with Interrogatory Two, are within the scope of discovery
in a public records case and respondent's outright refusal to answer is improper. The
magistrate therefore grants the motion to compel as to Interrogatories Four and Five.
No. 20AP-554 26
{¶ 73} Interrogatory Six asks broadly for information regarding RAGA or RLDF's
impact on official positions and actions taken by respondent: "[A]ll official positions and
actions taken by Respondent with respect to which the Respondent and/or any of
Respondent's employees communicated with any representative and/or employee of
RAGA and/or RLDF during any step of the decision-making or implementation
processes." (Relators' Ex. 4 at 14.) Respondent again inappositely objects that this
interrogatory seeks information that would not itself be subject to a public records
request. More effectively, however, respondent characterizes this interrogatory as
overbroad on its face. The magistrate agrees. Interrogatory Six requires respondent to
identify "official positions and actions," arguably the entirety of his office's work product,
and then sort through these to identify any influence attributable to respondent's
participation in RAGA or RLDF, an inherently vague or subjective factor. This
interrogatory is both overbroad and unduly burdensome in the context of the case, and
the magistrate therefore denies relators' motion to compel as to Interrogatory Six.
{¶ 74} Relators served 16 requests for production. Respondent objected to all as
irrelevant, overbroad, unduly burdensome, and not proportionate to the needs of the case.
Respondent again bases many of these objections on the erroneous premise that no
document need be produced in discovery if it would not have been directly responsive to
the underlying public records request. While rejecting that premise, the magistrate must
balance the broader scope of discovery against the court's past rulings that generally held
the position that a requestor may not circumvent the procedures and restrictions of the
Public Records Act by obtaining through discovery the very materials he was not entitled
to receive in his public records request. In camera submission and examination provide
the means to review the appropriateness of redactions and withheld documents in a
public records action. Henneman v. Toledo, 35 Ohio St.3d 241 (1988); State ex rel. Natl.
Broadcasting Co. v. Cleveland, 57 Ohio St.3d 77 (1991).
[Nonetheless,] [a]s the Ohio Supreme Court recognized in
Henneman * * *, the Ohio Public Records Act does not create
an 'absolute privilege' from discovery and 'does not protect
records from a proper discovery request in the course of
litigation, if such records are otherwise discoverable.' 35 Ohio
St.3d 241, 520 N.E.2d 207, 210-11 (Ohio 1988). In fact, the list
of documents that are not considered 'public record[s]' for the
purpose of the Ohio Public Records Act serves only 'to exempt
No. 20AP-554 27
the records described therein from the requirement of
availability to the general public on request.' Id. at 211; see also
Mattox v. Village of Geneva on Lake, No. 1:05-CV-2325, 2006
U.S. Dist. LEXIS 91952, 2006 WL 3762096, *1-2 (S.D. Ohio
Dec. 20, 2006) (holding that Ohio Rev. Code § 149.43 'does not
provide an absolute privilege against discovery requests in civil
litigation').
Rose v. State Farm Fire & Casualty Co., S.D. Ohio No. 2:10-CV-874, 2011 U.S. Dist.
LEXIS 142750, at *4-5 (Dec. 9, 2011).
{¶ 75} For requests 1-5, 9, 15, and 16, respondent states that despite the above
objections, respondent will produce the requested documents for in camera inspection by
the magistrate. In furtherance of this commitment, respondent has already submitted a
substantial quantity of material under seal. Because other aspects of this order may result
in more such submissions, the magistrate cannot determine at this time whether this
submission constitutes the entirety of materials sought in these requests. The magistrate
therefore concludes that no order compelling discovery can be suitably tailored at this
time for the materials sought in requests 1-5, 9, 15, and 16.
{¶ 76} Request for Production 13 sought the record retention schedules of
respondent's office. This material has been provided, and no order compelling discovery
is necessary.
{¶ 77} Requests for Production 10 and 11 seek the production of emails related to
the subject matter of certain targeted search terms including RAGA and RLDF, and
certain names. Again, respondent objected to the requests as unduly burdensome and
not proportional to the needs of the case. For these interrogatories, relators' motion to
compel is granted to a limited extent. Respondent will provide a detailed answer
regarding which of the search terms would generate unduly broad results, and, consistent
with the deposition testimony of respondent's scheduling assistant, Amy Sexton, conduct
searches of personal and public email accounts containing the pertinent information.
{¶ 78} Requests for Production 6, 7, and 8 seek all documents from all staff related
to planning, attendance, preparation, and signature of letters, amicus briefs, and events
attended or prepared in conjunction with other RAGA members. For the reasons stated
No. 20AP-554 28
in evaluating relators' Interrogatory 2, the motion to compel is granted for these and
respondent will furnish the requested documents.
{¶ 79} Request for Production 12 seeks the timesheets for staff listed in response
to Interrogatory 2. The magistrate agrees with respondent that this request is overbroad
and unduly burdensome because it will require production of large amounts of material
entirely unrelated to relators' inquiry into respondent's claim that his relationship with
RAGA and RLDF is a purely personal matter unrelated to the substantive work of his
office. Moreover, wholesale production of timesheets will likely require extensive
redaction of personal identifiers, litigation materials, and other materials that are exempt
or privileged. The magistrate denies the motion to compel as to Request for
Production 12. For the same reasons the magistrate denies the motion to compel as to
Request for Production 14, which seeks all personnel and telephone rosters for
respondent's office. The pertinent staff may be identified through other interrogatories
and requests for production discussed above, and the entire roster of the attorney
general's office is unnecessary.
{¶ 80} Relator also seeks to expand the scope of in camera review by the magistrate
of any documents that relators would deem potentially responsive to the discovery
process but respondent considers privileged, exempt, or otherwise subject to dispute. The
rulings set forth above essentially yield this result, and the motion to extend the scope of
in camera review is granted to the extent necessitated by those rulings.
{¶ 81} Turning to respondent's motion for a protective order, relators seek to
depose respondent personally and respondent's Solicitor General Benjamin Flowers.
{¶ 82} The law generally discourages gratuitous depositions of high-ranking public
or elected officials because these proceedings present a high risk of pursuit for nuisance
value—intrusive discovery and compelled testimony may needlessly disrupt the day-to-
day operations of government. In re Stone, 986 F.2d 898, 904 (5th Cir.1993). In Ohio, a
decision on whether to compel personal deposition testimony by high-ranking officials
will be determined based upon "the substantiality of the case in which the deposition is
requested; the degree to which the witness has first-hand knowledge or direct
involvement; the probable length of the deposition and the effect on government business
if the official must attend the deposition; and whether less onerous discovery procedures
No. 20AP-554 29
provide the information sought." State ex rel. Summit Cty. Republican Party Executive
Commt. v. Brunner, 117 Ohio St.3d 1210, 2008-Ohio-1035, ¶ 4. In Brunner, the Supreme
Court of Ohio determined that Jennifer Brunner, then the Secretary of State of Ohio,
would sit for deposition because the case presented a matter of great public interest and
inquired into the exercise of discretion by the secretary of state herself rather than staff
or agency. The court noted that a deposition need not be lengthy under the circumstances
and other methods would not yield the pertinent information.
{¶ 83} Respondent first argues that a public records case is inherently not
important enough to meet the substantiality factor in Brunner. The frequency with which
the Supreme Court of Ohio has taken up such cases belies this assertion. See, e.g., State
ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Off., 154 Ohio St.3d 63, 2017-Ohio-
8988, ¶ 10 ("This case involves a matter of great public importance: whether autopsy
reports in open homicide investigations are public records."). The question of whether
the Ohio Attorney General's documents and materials pertaining to his participation in
the activities of organizations related to, but not officially part of, his duties is facially
important enough to support a deposition in this case if the other factors are met.
{¶ 84} Respondent next argues that neither he nor the solicitor general can provide
relevant information through deposition because neither "has first-hand knowledge of the
search for responsive records in this case" conducted by subordinate staff. (Respondent's
June 18, 2021 Mot. for Protective Order at 12.) Relators persuasively counter that the
definition of what constituted responsive documents was necessarily the primary defining
factor that underlay the ministerial or clerical process of a search conducted by
respondent's staff, and respondent is the only person who can explain the elaboration of
that definition.
{¶ 85} Turning to the question of whether there are less burdensome forms of
discovery that will produce all the information to which relators are entitled, the state of
discovery in this case argues that there are not. The magistrate concludes that respondent
is, ultimately, the only person qualified to explain the relation between his RAGA and
RLDF activities and the public functions of his office. Respondent has to date only
provided an affidavit asserting only that no "records of my office in any of my personal
devices or private accounts that would have been responsive to this request." (Yost Aff.
No. 20AP-554 30
at ¶ 9.) That answer, of course, refuses the question: By stating that no responsive
documents exist because any documents that do exist are not records of his office,
respondent evades any inquiry by relators or the court into the status of potentially
responsive documents that do exist. There is no question that respondent, far more than
his staff, has the pertinent information regarding the extent to which participation in
RAGA and RLDF activities should be considered within the scope of his public duties and
activities. There do not appear to be, therefore, less onerous discovery procedures that
will provide the information sought.
{¶ 86} Finally, respondent presents no real argument that a reasonably conducted
deposition, arranged at his convenience, would disrupt the conduct of his official duties.
{¶ 87} The magistrate therefore concludes that respondent's protective order as to
himself must be denied. Relators having made no substantial argument with respect to
deposition of Solicitor General Flowers on the above-defined factors, the protective order
is granted as to the solicitor general.
{¶ 88} In summary, relators' motion to compel interrogatory answers and expand
production of documents for in camera inspection is granted in part and denied in part,
and respondent's motion for a protective order is denied as to himself and granted as to
Solicitor General Flowers.
/S/ MAGISTRATE
MARTIN L. DAVIS