IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE EX REL. MARK MILLER, :

: Case No. A1801834
Relator, :
: Judge Robert P. Ruehlman
v. :
:
COUNCILMEMBER SITTENFELD, et al., : RESPONDENT CITY OF
: CINCINNATI’S REPLY IN
Respondents. : SUPPORT OF MOTION FOR A
: PROTECTIVE ORDER TO STAY
: DISCOVERY OR, IN THE
: ALTERNATIVE, LIMIT
: DISCOVERY

INTRODUCTION

There is a straightforward discovery dispute between the parties about what is relevant

under Civil Rule 26. This case is about whether there was a violation of Ohio’s Open Meetings

Act by Respondent Councilmembers P.G. Sittenfeld, Wendell Young, Christopher Seelbach,

Tamaya Dennard, and Greg Landsman’s (collectively “Councilmembers”) regarding press

releases discussed in connection the termination of former City Manager Harry Black.

(Complaint ¶¶ 25-31, 54-58.) The only documents relevant to that question are documents that

are reasonably calculated to lead to evidence that a majority of Cincinnati City Council

participated in a prearranged meeting to deliberate about public business—specifically in this

case, the press releases about the termination of Mr. Black. R.C. 121.22.

Relator Mark Miller wants more than that. He asks for all text messages sent between and

among Councilmembers from January 1, 2018 through April 2018. That request is overly broad

and unduly burdensome. It sweeps in texts:

1. about personal matters made on private cell phones;

2. that do not involve a majority of Council;

 3. that are unrelated to public business; and

4. that are unrelated to the termination of Mr. Black.

None of these categories of documents is relevant to this case.

The municipal corporation of the City of Cincinnati (the “City”) supports the

Councilmembers’ request for a reasoned approach to discovery. Moreover, Relator is of the view

that he already has the documents necessary to demonstrate an open meetings violation. So no

additional discovery is needed.

Regardless, the Court should at least stay discovery until the related issues regarding

whether the Councilmembers’ private texts are public records is resolved by the court of appeals.

Or alternatively, the Court (or a special master) should review the documents at issue to

determine whether they are relevant—i.e., whether they are communications among a majority

of Councilmembers related to the press releases about the termination of Mr. Black. If it

determines that documents are relevant and should be produced, they should be kept confidential

for use only in this litigation and should be designated as attorneys’ eyes only.

RELEVANT BACKGROUND

Relator filed his claim for injunctive relief on April 9, 2018, alleging that

Councilmembers conducted secret meetings, in violation of Ohio’s Open Meetings Act, related

to issuing press releases on March 16, 2018 and March 18, 2018 in connection with the

termination of Mr. Black. (See Complaint ¶¶ 25-31, 54-58.) On April 18, 2018, Relator filed a

complaint for writ of mandamus in the First District Court of Appeals seeking to compel

Councilmembers to produce certain text messages between Councilmembers between March 1,

2018 and March 19, 2018 that the Councilmembers asserted were not considered public records

under R.C. 149.011. (See State ex rel. Miller v. Sittenfeld, et al., Hamilton County First District

2
Court of Appeals Case No. C1800224.) Six days later, Relator issued a series of discovery

requests to Councilmembers seeking, among other things, all correspondence between

Councilmembers from January 1, 2018 to the present (including text messages), and all

correspondence between a Councilmember and any other person regarding or referring to

Relators’ allegations. In the appeals court, the Councilmembers filed a motion to submit

documents for in camera inspection, arguing that the Ohio Supreme Court has not held that text

messages on personal cell phones are public records, and that a review of the content of those

messages should determine whether those messages documented the business of a public office

so as to contain a public record under R.C. 149.011(G). On the same day, Councilmembers filed

their motion requesting a stay of discovery until the First District reached a decision, or

alternatively that the Court issue a protective order to limit discovery to communications

regarding City business and keep such discovery confidential as between the parties to this suit.

LAW AND ARGUMENT

I. The Court should stay discovery until the First District decides whether the text
messages at issue in this case are public records.

It is no coincidence that Relator filed two separate actions here—one in this Court and

one in the appeals court. Relators’ entitlement to certain text messages on Councilmembers’

personal cell phones via a public records’ request necessarily implicates the issues and discovery

requests in this case. As Councilmembers have argued, as a matter of law, if Councilmembers

provide the requested text messages in this case, the First District case is moot, and the important

issue of whether certain text messages may be obtained via a public records’ request remains

unresolved. State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d

467. While Relators’ opposition to the instant motion does not address the stay issue directly,

given the lack of urgency, a stay will only support judicial economy and allow the courts and the

3
parties to resolve an issue both expressly brought by Relator and necessary to narrow the

discovery disputes in this case.

II. The Court should enter a protective order limiting the production of documents
to text messages about City business and keeping such texts confidential to the
parties for use in this litigation only.

The limited protective order requested by Councilmembers is in line with the scope of

discovery and the discovery protections under Ohio law. Under the Civil Rules, “Parties may

obtain discovery regarding any matter, not privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to the claim or defense of the party seeking

discovery or to the claim or defense of any other party * * * .” Civ.R. 26(B). Thus, discovery is

not limitless. Courts are empowered to prohibit “fishing expeditions” in which parties issue

overly broad discovery requests in hopes of stumbling across unforeseen information that could

aid their case. Insulation Unlimited, Inc. v. Two J's Properties, Ltd., 95 Ohio Misc.2d 18, 23, 705

N.E.2d 754 (C.P. 1997) citing Bland v. Graves, 85 Ohio App.3d 644, 659, 620 N.E.2d 920 (9th

Dist.1993). “To satisfy these concerns, a trial court must balance the relevance of the discovery

request, the party’s need for discovery, and the hardship upon the party from whom the

discovery is requested.” Id. citing Huebner v. Miles, 92 Ohio App.3d 493, 501, 636 N.E.2d 348

(12th Dist.1993). In order to prevent potential abuses, the Court’s authority regarding the

issuance of a protective order is broad, and “[u]pon motion by any party or by the person from

whom discovery is sought, and for good cause shown, the court in which the action is pending

may make any order that justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.” Civ.R. 26(C).

Relators’ requests go well beyond the confines of his Complaint. The Complaint centers

around meetings conducted prior to two press releases related to Mr. Black’s termination—one

4
on March 16, 2018 and one on March 18, 2018. Relator’s requests, however, seek any

correspondence between any member of council to anyone from the beginning of their term to

the present. Notably, Relator already has in his possession all of the emails and texts necessary to

determine whether or not Councilmembers violated Ohio’s Open Meetings Act as alleged in his

Complaint. In fact, he filed the set of emails allegedly constituting a violation along with his

Complaint here, and filed the series of Councilmembers allegedly illegal texts in his mandamus

action. Notwithstanding the fact that Relator already has the relevant documents and

communications, Relator’s unnecessary requests for additional documents and communication

are not even limited to discussions of City business, but instead seek correspondence on any

matter at all that Councilmembers discussed. It is clear that Relators are on a fishing expedition

not only to identify claims/causes not brought in this action, but also to rifle through

Councilmembers’ personal texts in order to publish those texts and embarrass and annoy

Councilmembers. In fact, Relator specifically requests that the Court grant it permission for the

“use or dissemination” of information in this case in any way that Relator’s counsel sees fit (i.e.,

for purposes other than this litigation). Relator should not be allowed to abuse the discovery

process in this way.

Given the obvious potential for annoyance and embarrassment inherent in Relator’s

requests for personal text messages that necessarily involve not only their personal lives, but

third parties who are not involved in this case and not implicated in Relator’s allegations under

Ohio’s Open Meetings Act, Councilmembers have made the modest request, first, that the

documents be produced for in camera review. The City believes that, while unnecessary, that

offer negates Relator’s argument that City or Councilmembers’ counsel are deciding which

documents are relevant (even though that is the common process in litigation). After that review,

5
the only additional documents that should be produced should be text messages about the press

releases among a majority of Councilmembers—i.e., no more and no less than the texts relevant

to this case. Third, in furtherance of the goals of Civ.R. 26, the City agrees that, at this stage of

the litigation, any produced messages should remain confidential and limited to attorneys’ eyes

only.

CONCLUSION

For the reasons above, the Court should grant Councilmembers’ request for a stay of

discovery until the issue of whether the Councilmembers’ text messages are public records is

decided by the First District Court of Appeals. Alternatively, the Court should issue a protective

order limiting the production of documents to text messages about City business and ordering

that produced documents remain confidential at this stage of the litigation.

Respectfully submitted,

PAULA BOGGS MUETHING

CITY SOLICITOR

/s/ Aaron M. Herzig

Aaron M. Herzig (0079371)
Donnell J. Bell (0091265)
TAFT STETTINIUS & HOLLISTER LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202-3957
Phone: (513) 381-2838
Fax: (513) 381-0205
aherzig@taftlaw.com
dbell@taftlaw.com
Counsel for Respondent City of Cincinnati

6
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served via electronic mail to the following

on this 15th day of October, 2018:

Brian Shrive
Christopher Finney
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
brian@finneylawfirm.com
chris@finneylawfirm.com
Counsel for Relator Mark Miller

Paul M. DeMarco
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edward Road, Suite 650
Cincinnati, Ohio 45209
pdemarco@msdlegal.com
Counsel for Derek Bauman

Steven P. Goodin
Daniel J. Knecht
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
sgoodin@graydon.law
Counsel for Vice-Mayor Christopher Smitherman

Bryan E. Pacheco
Mark A. Vander Laan
DINSMORE & SHOHL
255 East Fifth Street, Suite 2100
Cincinnati, OH 45202
mark.vanderlaan@dinsmore.com
bryan.pacheco@dinsmore.com
Counsel for Councilmembers Alexander Paul
George Sittenfeld, Wendell Young,
Christopher Seelbach, Tamaya Dennard,
and Greg Landsman

/s/ Aaron M. Herzig