Case: 1:12-cv SJD Doc #: 58 Filed: 04/11/13 Page: 1 of 7 PAGEID #: 667

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1 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 1 of 7 PAGEID # 667 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION FAIR ELECTIONS OHIO, et al., vs. Plaintiffs, JON HUSTED, in his official capacity as Secretary of State of Ohio, et al., Defendants, Case No. 112-cv-797 Chief Judge Susan J. Dlott Magistrate Judge Stephanie K. Bowman MOTION TO MODIFY PRELIMINARY PRETRIAL ORDER Pursuant to Rule 16 of the Federal Rules of Civil Procedure, and for the reasons enumerated in the accompanying Memorandum of Law, Plaintiffs move this Court to modify its January 16, 2013, Preliminary Pretrial Order to expand the time allotted for discovery. Plaintiffs propose an amended pretrial schedule with the following deadlines Fact discovery cut-off August 15, 2013 Plaintiff s expert disclosure deadline September 30, 2013 Defendant s expert disclosure deadline November 15, 2013 Discovery cut off December 31, 2013 Dispositive motion deadline February 17, 2014 Response deadline March 10, 2014 Reply deadline March 24, 2014 This proposed schedule would require postponement of the final pre-trial conference and trial to available dates on the Court s calendar. Defendants would not oppose an extension of the applicable deadlines for 45 days, but they have expressed their opposition to Plaintiffs proposed schedule. Plaintiffs proposed schedule 1

2 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 2 of 7 PAGEID # 668 would not prejudice Defendants, however; instead it will help to ensure that this Court will have before it an appropriately complete factual record on which to decide the important issues in this case. A Memorandum of Law follows detailing the specific modifications requested and the arguments in support of this motion. Respectfully submitted, /s/ David A. Singleton DAVID A. SINGLETON, trial attorney ( ) NGOZI V. NDULUE ( ) PAMELA H. THURSTON ( ) Ohio Justice & Policy Center 215 E. 9th Street, Suite 601 Cincinnati, Ohio ext (fax) dsingleton@ohiojpc.org nndulue@ohiojpc.org phthurston@ohiojpc.org PATRICK M. QUINN ( ) Brunner Quinn 35 North Fourth Street Suite 200 Columbus, Ohio (614) Phone (614) Fax pmq@brunnerlaw.com 2

3 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 3 of 7 PAGEID # 669 MEMORANDUM IN SUPPORT On January 16, 2013, this Court entered a scheduling order following a discovery conference with all parties. The scheduling order sets a number of deadlines, which include a May 1, 2013 fact discovery cut-off, a June 1, 2013 deadline for disclosure of Plaintiffs experts, a July 15, 2013 deadline for disclosure of Defendants experts, an August 15, 2013 discovery cutoff and an October 1, 2013 deadline for filing dispositive motions. (Document No. 49, January 16, 2013, Preliminary Pretrial Order.) Plaintiffs seek an amended scheduling order with the following deadlines Fact discovery cut-off August 15, 2013 Plaintiff s expert disclosure deadline September 30, 2013 Defendant s expert disclosure deadline November 15, 2013 Discovery cut off December 31, 2013 Dispositive motion deadline February 17, 2014 Response deadline March 10, 2014 Reply deadline March 24, 2014 This proposed schedule will also require new dates for the final pre-trial conference and trial, in accordance with the Court s discretion in managing its calendar. Pursuant to Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order may be modified for good cause and with the judge s consent. The Sixth Circuit has held that [t]he primary measure of Rule 16 s good cause standard is the moving party's diligence in attempting to meet the case management order s requirements. Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002) (internal citations omitted). Courts should also consider possible prejudice to the party opposing the modification. Andretti v. Borla Performance Industries, Inc., 426 F.3d 824, 830 (6th Cir. 2005). Good cause exists in this instance because 2

4 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 4 of 7 PAGEID # 670 Plaintiffs have diligently pursued discovery and Defendants will not be prejudiced by the modification. Plaintiffs have exercised diligence in pursuing discovery by propounding interrogatories, requests for production, and requests for admissions upon Defendants and by serving subpoenas duces tucem on jails, temporary holding facilities, and county boards of elections. The bulk of Plaintiffs discovery to date has focused on estimating the number of eligible jailed Ohio voters who were unable to vote in the November 2012 general election due to the deadline set forth in section of the Ohio Revised Code. The Court expressed its concern about this issue in its denial of Plaintiffs motion for a temporary restraining order. (Document No. 30, November 1, 2012, Order Denying Plaintiffs Motion for Temporary Restraining Order at ) In order to address this issue, Plaintiffs counsel conducted preliminary research about potential repositories of information about jailed electors. Following this research, Plaintiffs counsel sent 49 subpoenas duces tecum to jails, temporary holding facilities, and county boards of election. The information received from these entities has varied widely and continues to require followup by Plaintiffs counsel. (Exhibit A, Declaration of Ngozi V. Ndulue.) This process has consumed much more time and effort than Plaintiffs anticipated when the discovery schedule was first set. More complete information is necessary before Plaintiffs conduct depositions and proceed with other aspects of discovery. Progress in discovery has also been slowed by Defendants delay in meeting discovery requirements. Pursuant to the Joint Discovery Plan, Defendants initial disclosures under Rule 26(a) of the Federal Rules of Civil Procedure were due on January 30, (Document No. 42, December 28, 2012 Joint Discovery Plan.) Despite repeated inquiries by Plaintiffs counsel, Defendants did not provide their initial disclosures until March 7, Defendants have also 3

5 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 5 of 7 PAGEID # 671 requested an additional thirty days to provide documents responsive to Plaintiffs First Request for Production of Documents. (Exhibit A.) Defendants delay in providing discovery makes it unlikely that Plaintiffs will be able to complete discovery in the ambitious time frame originally planned. Despite their demonstrated diligence, Plaintiffs will need additional time to compile the information this case requires. Plaintiffs believe that realistic planning requires a three-and-ahalf month extension of the fact discovery deadline and a corresponding extension of the other deadlines listed in the preliminary pretrial order. Defendants will not be prejudiced by a modification of the preliminary pretrial order. Defendants lead counsel has recently left the Office of the Ohio Attorney General, and new lead counsel has been placed on the case. In addition, new co-counsel has been added to the case. (Document No. 55, April 3, 2013, Notice of Withdrawal and Substitution of Lead Counsel; Document No. 56, April 3, 2013, Notice of Appearance of Sarah Elaine Pierce.) Given the time that will be needed for new counsel to familiarize themselves with the case, a modification of the scheduling order is in Defendants best interest as well. Defendants agree that a forty-five day extension of all applicable deadlines would be appropriate; however, they disagree with the length of Plaintiffs proposed extension of time. 1 Defendants have expressed concern that a longer pretrial schedule will delay trial until the summer of 2014 and prevent a final resolution in time for the 2014 general elections. 1 Counsel for Plaintiffs proposed an alternate schedule to Defendants on Monday, April 8, 2013 and advised Defendants counsel that a motion for extension would be filed by the end of the day on Thursday, April 11, Defendants counsel has not yet responded to the proposed alternate schedule. Plaintiffs are filing the motion at this time in order to give the Court adequate time to consider it before the close of fact discovery. 4

6 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 6 of 7 PAGEID # 672 Defendants will not be prejudiced by Plaintiffs proposal, however. Whenever the court issues a final ruling in this case, whether on summary judgment or after trial, it will be fully capable of tailoring its final order of relief so as to ensure that the general election is not disrupted. Given the need for thorough fact development in this case, Plaintiffs diligence in pursuing discovery, and the absence of prejudice to the parties, good cause exists for a modification of this Court s scheduling order. Therefore, Plaintiffs motion to modify the scheduling order should be granted. Respectfully submitted, /s/ Ngozi V. Ndulue DAVID A. SINGLETON, trial attorney ( ) NGOZI V. NDULUE ( ) PAMELA H. THURSTON ( ) Ohio Justice & Policy Center 215 E. 9th Street, Suite 601 Cincinnati, Ohio ext (fax) dsingleton@ohiojpc.org nndulue@ohiojpc.org phthurston@ohiojpc.org PATRICK M. QUINN ( ) Brunner Quinn 35 North Fourth Street Suite 200 Columbus, Ohio (614) Phone (614) Fax pmq@brunnerlaw.com 5

7 Case 112-cv SJD Doc # 58 Filed 04/11/13 Page 7 of 7 PAGEID # 673 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Plaintiffs Motion to Modify Preliminary Pretrial Order was filed electronically on April 11, Parties may access this document through that system. /s/ Ngozi V. Ndulue NGOZI V. NDULUE 2

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