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John P. Kilroy v. Jon Husted

November 18, 2011

JOHN P. KILROY, PLAINTIFF,
v.
JON HUSTED, DEFENDANT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Terence P. Kemp

OPINION AND ORDER

This matter is before the Court on the Motion to Reconsider Order to Quash Subpoenas of Mike DeWine, J.B. Hadden, and Custodian of Records and Motion for Authorization to Take Additional Discovery Related to Ohio Rev. Code § 3599.45's Impact on County Prosecuting-Attorney Candidates (ECF No. 64), the Memorandum of Non-Parties Richard Michael DeWine, Custodian of Records for Mike DeWine for Ohio, and J.B. Hadden in Opposition to Plaintiff's Motion to Reconsider Order to Quash Subpoenas (ECF No. 68), and Plaintiff Kilroy's Reply in Support of Motion to Reconsider Order to Quash Subpoenas of Mike DeWine, J.B. Hadden, and Custodian of Records and Motion for Authorization to Take Additional Discovery Related to Ohio Rev. Code § 3599.45's Impact on County Prosecuting-Attorney Candidates (ECF No. 69). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion.

I. Background

Plaintiff John Kilroy is a lawyer and minority shareholder of Target Corporation, a publicly traded corporation that, through a network of in-store pharmacies, provides Medicaid goods and services in Ohio. Plaintiff is a registered and politically active voter and he wishes to contribute to the election campaigns of candidates for Ohio Attorney General and county prosecuting attorneys, but claims that he has been deterred from doing so by Ohio Revised Code § 3599.45.

Plaintiff filed the instant action, alleging that Ohio Revised Code § 3599.45 violates his rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff also alleges that the statute is unconstitutionally overbroad, effecting many other de minimus shareholders in publicly traded Medicaid providers. Plaintiff seeks a declaratory judgment that § 3599.45 is unconstitutional.

Plaintiff has served subpoenas on Ohio Attorney General Richard Michael DeWine, the DeWine Campaign, and the campaign's treasurer, J.B. Hadden. Each subpoena commands these non-parties to appear at depositions and to bring several categories of documents related to the DeWine Campaign's activities, including: policies and procedures relating to compliance with Ohio Revised Code § 3599.45, communications with potential contributors "who are or were suspected to be Ohio Medicaid providers . . . regarding the subject of contributing"; and communications with potential contributors discussing § 3599.45. (ECF Nos. 23, 24, 25.) Additionally, the subpoena directed at General DeWine orders him to produce "all personal brokerage- or investment-account statements" for individual or joint accounts with his wife "that reflect an ownership interest in" any of the following Wal-Mart, Wal-mart Stores, Inc., Walgreen Co., CVS Caremark Corp., Rite Aid Corp., Target Corp., Medco Health Solutions, Inc., and Kroger Co. (ECF No. 23.) The subpoena also commands General DeWine to produce all documentation of the dates in 2009 and 2010 on which he individually or jointly with his wife purchased or sold stock in any of the above-mentioned companies. Id.

These three non-parties moved to quash the subpoenas. (ECF No. 29.) On August 24, 2011, this Court granted the non-parties' motion to quash. (ECF No. 31.)

On August 26, 2011, Plaintiff filed a request for a telephone status conference to "to discuss and seek the Court's guidance regarding his discovery plans" in light of the Court's decision to grant the non-parties' motion to quash. (ECF No. 32 at 1.) This Court scheduled a status conference with the parties and at that conference Plaintiff's counsel convinced the Court that some of the information Plaintiff seeks through deposition testimony of the non-party attorney general and county prosecuting attorney candidates is relevant to support his allegations that Ohio Revised Code § 3599.45 is unconstitutionally overbroad and that the statute is not "closely drawn." Also, Plaintiff's counsel argued that, in light of Defendant's new assertion that he intends to defend against this suit by showing that § 3599.45 in not enforced, Plaintiff is entitled to discover information as to the factual accuracy of this contention. Plaintiff's counsel also indicated that the subpoena issued to Attorney General DeWine (and those anticipated to be issued to county prosecuting attorney candidates) could be narrowed to avoid the Court's objection to the breadth of the subpoena.

At the conference, the parties agreed to negotiate together to attempt to reach some fact stipulations related to the reach of § 3599.45. The Court indicated that it may be inclined to revisit its previous order granting the non-parties' motion to quash if the parties could not come to an agreed stipulation related to this information.

Ultimately the parties were unable to come to any agreed-upon stipulation and Plaintiff moved for reconsideration of this Court's decision granting the non-parties' motion to quash. In that motion, Plaintiff added the new request that he be permitted to depose non-party county prosecuting attorney candidates. That motion is ripe for review.

II. Standards

This Court has the "inherent power to reconsider interlocutory orders and reopen any part of a case before entry of a final judgment." Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991). The Court invokes that power to reconsider its previous decision granting the non-parties' motion to quash.

The Court previously relied upon Rule 45 of the Federal Rules of Civil Procedure to determine whether the subpoenas at issue were appropriately quashed. Rule 45 provides that "the issuing court must quash or modify a subpoena that . . . subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3)(A)(iv). In determining whether a subpoena imposes an undue burden, a court considers "such factors as relevance, the need of the [requesting] party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed." American Elec. Power Co. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999) (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D. N.Y. 1996)). "Courts are required to balance the need for discovery against the burden imposed on the person ordered to produce documents, and the status of a person as a non-party is a factor that weighs against disclosure." Id. Finally, the burden is on ...


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