United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This relates to Plaintiffs Alva Campbell and Raymond Tibbetts
A. Sargus, Jr., Chief Judge
DECISION AND ORDER ON MOTION TO COMPEL
Michael R. Merz, United States Magistrate Judge
method-of-execution case, brought pursuant to 42 U.S.C.
§ 1983, is before the Court on Plaintiff Tibbetts and
Campbell's Motion to Compel Discovery (ECF No. 1309),
filed at 11:19 p.m. on October 18, 2017. At the conclusion of
the deposition of Carol Wright on October 19, 2017, the Court
heard oral argument from counsel for all
parties. At 12:57 p.m. on October 20, 2017,
Plaintiffs filed their Reply Memorandum in Support (ECF No.
Motion seeks to compel the production of statements made by
nine different ODRC employees to ODRC Counsel Stephen Gray
regarding their observations at the execution of Gary Otte on
September 13, 2017, the existence of which was disclosed in a
privilege log furnished by Defendants to Plaintiffs at 3:53
p.m. on Wednesday, October 18, 2017. At the Court's
request, the documents were provided to the Court for in
camera inspection on the afternoon of October 20, 2017.
the documents is a statement prepared by Larry Greene which
the Court previously found to be attorney work product. On
October 12, 2017, the Court sustained the privilege objection
on the basis that the Plaintiffs had been able to depose Mr.
Greene. (ECF No. 1292, PageID 47212-13, citing Fed.R.Civ.P.
26(b)(3)(A)(ii)). That statement continued to be protected by
the prior ruling and the Motion to Compel as to Mr.
Greene's statement is denied on that basis.
do not in their instant Motion dispute the correctness of
that prior ruling. That is to say, they at least implicitly
concede that these documents are attorney fact work product,
Instead they assert that the privilege has been waived
Defendant's failure to disclose the existence of the
documents and make a timely assertion of privilege. They note
that their document request was made, as the Court's
Scheduling Order required, on September 29, 2017 (ECF No.
1245, PageID 45390, ¶ 5). The same order required
responses to be made and filed by 5:00 p.m. on October 6,
claim prejudice from being unable to depose some of these
witnesses and that they were “crippled in their ability
to fully question those witnesses who were deposed because
Plaintiffs were not made aware that other witnesses had given
statements - protected or otherwise.” (Reply, ECF No.
1309, PageID 47478-79).
orally opposing the Motion, Defendants' counsel Joselyn
Lowe acknowledged that neither the witnesses nor the
statements had been disclosed prior to production of the
privilege log on October 18, 2017. She claimed this was due
to inadvertence and the pressure of the workload in this
Civ. P. 37 authorizes a district court to sanction a party
for violation of his or her discovery obligations. However,
Fed.R.Civ.P. 37(a)(2) expressly requires that a motion to
compel “must include a certification that the movant
has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an
effort to obtain it without court action.”
Plaintiffs' Motion to Compel contains no such
certification and in fact affirmatively represents that
“Plaintiffs have not further conferred with Defendants
concerning their position on the motion.” (Motion, ECF
No. 1309, PageID 47476, n. 1.) This Court, long before it
became a national rule, has insisted on attorney conferral
before a motion to compel is filed. Local Rule 17(a),
effective September 1, 1969, provided that no motion under
Rule 37 would be considered until the matter had been
explored with opposing counsel “in an effort to
informally handle the matter . . .” On that basis the
Motion to Compel is DENIED.
additional basis for denial, the Court finds any prejudice to
Plaintiffs is minimal or non-existent. Messrs. Cool, Green,
and Woods have all been deposed. In addition to them, the
identity of the other ODRC personnel who gave statements was,
according to her deposition testimony, known to Ms.
Wright as person who were present at SOCF at the
time of the Otte execution who observed or were in a position
to observe the matters about which she was cross-examined at
having examined the statements in camera, the Court finds
that none of them contain information favorable to
Plaintiffs' position(s) regarding what happened at the
Otte execution, assuming that the Court understands that
position adequately from the filings and Ms. Wright's
deposition. Put another way, had it been asked to authorize
these depositions on the basis of the content of the
statements, it would not have done so. That said, the Court
will have the statements available at the time of the hearing
and will be able to reconsider this ruling if the contents of
the statements become material, directly or for impeachment.
The Motion to Compel is DENIED.