In re Braden, Civil Action Nos.: 18-mc-0095 (RC)

344 F.Supp.3d 83

IN RE Subpoenas Served on E. Mark BRADEN

In re Subpoenas Served on Edward Gillespie and John Morgan

In re Subpoenas Served on the Rebuplican National Committee, The National Republican Congressional Committee, and Adam Kincaid

Civil Action Nos.: 18-mc-0095 (RC)

18-mc-0151 (RC)

Civil Action No.: 18-mc-0105 (RC)

Civil Action No.: 18-mc-0140 (RC)

United States District Court, District of Columbia.

Signed October 31, 2018

Michael C. Baker, Perrin Cooke, Thomas Perrin Cooke, Covington & Burling LLP, Washington, DC, for Movant.

Katherine L McKnight, Baker & Hostetler LLP, Washington, DC, for Respondents.

MEMORANDUM OPINION

GRANTING MOTIONS TO TRANSFER

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this matter, the Court finds itself in a difficult position; it has been asked to rule on discovery in an action overseen by a different United States district court, the Southern District of Ohio, related to the voting rights of Ohio citizens; an issue with little to no connection to Washington, D.C. Pending before the Court are five motions to quash or enforce subpoenas issued by the Southern District of Ohio seeking documents and testimony from recipients in Washington, D.C. The Plaintiffs in the underlying action—five organizations and several individuals who are Democratic voters living in Ohio—have asked this Court to transfer two of the subpoena disputes back to the Southern District of Ohio, pursuant to Federal Rule of Civil Procedure 45. One of the subpoena recipients, E. Mark Braden, has also asked this Court to transfer the disputes in which he is involved. Several of the subpoena recipients, however, resist transfer. Despite their protestations, as explained below, the Court concludes that transfer is appropriate under Federal Rule 45, given the nature of the disputes and the posture and complexity of the underlying action.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

In the underlying action, Plaintiffs are challenging Ohio's 2011 congressional redistricting process—which resulted in the state's sixteen current United States congressional districts—as an unconstitutional partisan gerrymander. See Second Am. Compl. ("SAC") ¶¶ 1–2, APRI, S.D. Ohio ECF No. 37.² Plaintiffs claim that Ohio's congressional districts resulted from "a coordinated strategy by state and national Republicans to win control of the state legislature for the purpose of controlling the redistricting process." Movants' Mem. Supp. Mot. Compel Compliance ("RNC Compel Mot.") at 1, In re Subpoenas Served on RNC, NRCC, & Adam Kincaid ("RNC, NRCC, & Kincaid Subpoenas") , No. 18-mc-0140, ECF No. 1-1; see also SAC ¶¶ 2–3. Plaintiffs further claim that, having gained control, the Republicans deliberately excluded non-Republicans from the redistricting process and crafted a congressional district map that "would virtually guarantee" that Republicans would consistently win twelve districts and Democrats would win four districts. Id. ¶¶ 47–61. Plaintiffs argue that the state's congressional district map "intentionally burdens their: (1) First Amendment rights to associate for the advancement of their political beliefs, to express their political views, and to participate in the political process; (2) First and Fourteenth Amendment rights to cast a meaningful vote; and (3) Fourteenth Amendment right to equal protection under the law," and that it "exceeds powers granted to the states under Article I of the Constitution." RNC Compel Mot. at 1; SAC ¶ 9. Plaintiffs' complaint, filed in the Southern District of Ohio earlier this year,³ seeks (1) a declaration that Ohio's congressional district map is unconstitutional; and (2) an order enjoining any further elections under the map and requiring the implementation of a new map for use in future elections.⁴ SAC ¶ 12.

The parties are now in discovery and, as explained in greater detail below, the Southern District of Ohio Judge overseeing the proceedings, Judge Timothy S. Black, has set an expedited discovery and trial schedule. Acting swiftly, so as to complete discovery before the December 19, 2018 deadline, Plaintiffs have subpoenaed several national Republican organizations and individuals associated with those organizations, seeking documents and testimony that Plaintiffs believe will flesh out the alleged conspiracy between national and Ohio Republicans to unconstitutionally redraw Ohio's congressional districts.

Certain recipients of Plaintiffs' subpoenas have resisted disclosing responsive documents that Plaintiffs believe are not protected by any privilege, and have conducted document searches that Plaintiffs believe are insufficient to comply with the Federal Rules of Civil Procedure.⁵ The subpoena disputes involving subpoena recipients located in Washington, D.C. have been raised before this Court, rather than before the Southern District of Ohio, as required by Federal Rule of Civil Procedure 45.⁶ The following is a brief description of the relevant subpoena recipients and their disputes with Plaintiffs.

A. Mark Braden

Mr. Braden, according to Plaintiffs, was one of the national Republican operatives involved in the scheme to unconstitutionally gerrymander Ohio's congressional districts. Pls.' Mem. Law Opp'n E. Mark Braden's Mot. Quash Subpoenas ("Braden Quash Opp'n I") at 4, In re Subpoena Served on E. Mark Braden ("Braden Subpoena I") , No. 18-mc-0095, ECF No. 4. Mr. Braden is a Washington, D.C.-based attorney who was retained by the Ohio Attorney General's office as special counsel to advise the Ohio legislature during the 2011 redistricting cycle. Mem. Supp. Mot. Quash ("Braden Quash Mem. I") at 1, Braden Subpoena I , ECF No. 1-1. Plaintiffs contend that while Mr. Braden may have provided legal advice to the Ohio legislature, he also "played a key role in developing Ohio Republicans' redistricting strategy and guiding the map drawing process." Braden Quash Opp'n I at 5.

Plaintiffs have served three subpoenas on Mr. Braden, seeking documents and testimony relating to the 2011 Ohio redistricting and other redistricting litigation in which Mr. Braden has been involved. See Braden Quash Mem. I Ex. A & Ex. B, ECF Nos. 1-2 & 1-3; Mem. Supp. Mot. Quash ("Braden Quash Mem. II") Ex. 1, In re Subpoena Served on E. Mark Braden ("Braden Subpoena II") , No. 18-mc-0151, ECF No. 1-2. In response, Mr. Braden filed motions in this Court to quash the subpoenas, arguing that the subpoenas seek privileged or irrelevant material and impose an undue burden on him. See generally Braden Quash Mem. I; Braden Quash Mem. II. Mr. Braden subsequently filed motions to transfer both of his subpoena disputes to the Southern District of Ohio. See generally Ohio Att'y General & Non-Party Witness E. Mark Braden's Mot. to Transfer ("Braden Transfer Mot. I"), Braden Subpoena I , ECF No. 13; Ohio Att'y General & Non-Party Witness E. Mark Braden's Mot. to Transfer ("Braden Transfer Mot. II"), Braden Subpoena II , ECF No. 4.

B. Edward Gillespie and John Morgan

Plaintiffs also believe that Edward Gillespie and John Morgan were among the national Republican operatives involved in the gerrymandering scheme. Movants' Mem. Supp. Mot. Compel Compliance ("Gillespie Compel Mot.") at 1–3, In re Subpoenas Served on Edward Gillespie & John Morgan ("Gillespie & Morgan Subpoenas") , No. 18-mc-0105, ECF No. 1-1. Mr. Gillespie was the Honorary Chairman of the Republican State Leadership Committee ("RSLC") from 2010 through early 2011, and then the Chairman of RSLC's Board of Directors during the Ohio congressional redistricting at issue in the underlying action. Decl. of Edward Gillespie ("Gillespie Decl.") ¶ 4, Edward Gillespie's & John Morgan's Brief Opp'n Gillespie Compel Mot. ("Gillespie Compel Opp'n") Ex. A, Gillespie & Morgan Subpoenas , ECF No. 4-1. "The RSLC is a political organization designed to elect Republicans to state level offices." Id. ¶ 5. Plaintiffs claim that the RSLC, among other national Republican organizations, attempted "to control the redistricting process in Ohio by guiding state Republican officials in creating a map to maximize the Republican share of Ohio's congressional delegation," and that as Chairman Mr. Gillespie was a "central architect" of these efforts. Gillespie Compel Mot. at 2.

Mr. Morgan is a "professional demographer"—an expert in population composition and distribution—who "regularly provide[s] services to states and localities responsible for drawing electoral maps." Decl. of John Morgan ("Morgan Decl.") ¶ 3, Gillespie Compel Opp'n Ex. C, ECF No. 4-3. He provided technical and map drawing redistricting services to the Ohio legislature in connection with the 2011 redistricting. Id. ¶ 7. In supplying his services, he visited Ohio twice in 2011 to administer "in-person, on sight training and guidance to the [Ohio] map drawers." Morgan Decl. ¶ 8; SAC ¶ 49. He claims that outside of these visits, his "work supporting Ohio's redistricting efforts was extremely limited." Id. ¶ 9.

Plaintiffs have served subpoenas on Mr. Gillespie and Mr. Morgan, seeking documents from 2010 through 2012 that they believe will show the unconstitutional intent of national and state Republicans to secure a partisan advantage through the Ohio redistricting process. Gillespie Compel Mot. at 11; Gillespie Compel Mot. Ex. G & Ex. H, ECF No. 1-4. Mr. Gillespie asserts that, despite a thorough search, he is not in possession of any documents responsive to Plaintiffs' subpoena. See Gillespie Compel Opp'n at 5, ECF No. 4; Gillespie Decl. ¶¶ 14–15. Mr. Morgan asserts that he has identified and produced to Plaintiffs all responsive, non-privileged documents in his possession. Gillespie Compel Opp'n at 7; Morgan Decl. ¶ 15. Both individuals have resisted searching for and producing documents created prior to 2011, because they claim that those documents are unrelated to the 2011 Ohio redistricting and thus not relevant to Plaintiffs' action. Gillespie Compel Opp'n at 1–2. Mr. Gillespie lodges the same argument with respect to...