United States District Court, District of Columbia
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
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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,
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. SAC ¶ 12.
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.
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. 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. The following is a brief description of
the relevant subpoena recipients and their disputes with
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.
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.
Edward Gillespie and John Morgan
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.
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.
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 certain RSLC fundraising-related
claim that the document searches undertaken by Mr. Gillespie
and Mr. Morgan were insufficient, and that their relevance
objections are invalid. Gillespie Compel Mot. at 11- 12.
Plaintiffs accordingly filed a motion with this Court to
compel Mr. Gillespie and Mr. Morgan to conduct additional
searches over a broader scope of documents. See generally
id. Recently, Plaintiffs also filed a motion to transfer
this subpoena dispute to the Southern District of Ohio.
See generally Movants' Mot. Transfer Mot. Compel
Compliance (“Gillespie Transfer Mot.”),
Gillespie & Morgan Subpoenas, ECF No. 7. Mr.
Gillespie and Mr. Morgan oppose this motion. See
generally Opp'n Pls.' Mot. Transfer
(“Gillespie Transfer Opp'n”), Gillespie
& Morgan Subpoenas, ECF No. 8.
Republication National Committee, National Republican
Congressional Committee, and Adam Kincaid
Plaintiffs believe that the Republican National Committee
(“RNC”), the National Republican Congressional
Committee (“NRCC”), and Adam Kincaid were
“central participants” in the alleged scheme. RNC
Compel Mot. at 5-7. The RNC is a national Republican party
committee under 52 U.S.C. § 30101(14) and 11 C.F.R.
§ 100.13. Aff. of Dalton L. Oldham (“Oldham
Aff.”) ¶ 5, Non-Party, RNC's, NRCC's,
& Adam Kincaid's Opp'n RNC Compel Mot.
(“RNC Compel Opp'n”) Ex. C, RNC, NRCC,
& Kincaid Subpoenas, ECF No. 11-2. It has a
“special relationship” with the RSLC, described
above, particularly with respect to congressional