The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICARDO VERNAIR DODSON, : Case No. 2:18-cv-00908
:
Plaintiff, : District Judge Sarah D. Morrison
: Magistrate Judge Sharon L. Ovington
vs. :
:
GARY C. MOHR, et al.,
:
Defendants. :
:
ORDER
I. Introduction
The parties have been engaged in a long-running discovery dispute concerning
Plaintiff’s Interrogatories and Requests for Production of Documents. Their dispute has
been recommitted to the undersigned judicial officer for resolution. (Doc. No. 72). The
case has also been recommitted for further consideration of Plaintiff’s Motion Requesting a
Telephone Conference. (Doc. No. 65).
II. Background
A. Plaintiff’s Fourteenth Amendment Claim
Plaintiff’s single remaining claim asserts that “Defendants Thalheimer, Venters,
Nelson, Handwerk, Smith, Reveal, Kovac, and Rauschenberg personally engaged in
conduct in connection with Plaintiff’s July 2018 parole proceedings that violated his
Fourteenth Amendment right to a meaningful parole hearing.” (Doc. No. 45, PageID 544).
The conduct at issue was the Ohio Parole Board members’ consideration of allegedly false
information in his parole file. The false information is multifold, according to Plaintiff:
• He kidnapped and raped a mentally handicapped female victim.
• He caused the victim to become pregnant as a result of the rape and caused the
victim to place the child up for adoption.
• He committed a domestic violence offense.
• He informed a group of sex offenders during treatment class that a female staff
member was a rape victim.
• The community’s objection to his release in the past, noted in his 2018 parole
decision.
• “Extensive victimization.”
(Doc. No. 46, PageID 555-58).
The merits of Plaintiff’s assertion that the Parole Board considered false information
in connection with his July 2018 parole proceedings is not presently at issue. Instead, the
parties’ discovery dispute centers on Plaintiff’s search for information to support his
Fourteenth Amendment claim. He repeatedly emphasizes that “[he] should have access to
information necessary to establish his claim.” (Doc. No. 67, PageID 700; Doc. No. 65,
PageID 667; Doc. No. 78, PageID 761). And he maintains that the information he seeks in
highly relevant to proving his claim. (Doc. No. 67, PageID at 700-01).
B. The Course of Discovery
Plaintiff sent Interrogatories and Requests for Production of Documents to
Defendants’ in late March 2020. (Doc. No. 61, PageID 652). Almost immediately,
Defendants’ counsel spotted two arguable problems with Plaintiff’s discovery requests. On
March 31, 2020, he sent a letter to Plaintiff asserting that his Interrogatories—numbered 1
through 22—added up to more than 25, the number permitted by Fed. R. Civ. P. 33(a)(1).
(Doc. No. 81, PageID 782). Defendants’ counsel also faulted the Interrogatories for not
being directed to a specific party in accordance with Fed. R. Civ. P. 33(b)(1)(A). Counsel
then wrote, “Please correct and resubmit your interrogatories directed to a specific party.”
(Doc. No. 81, PageID 782). Counsel invited Plaintiff to contact him with any questions or
concerns. Id.
On April 8, Plaintiff emailed Defendants’ counsel asking for a phone conference
with him to try resolve the problems raised in his March 31st letter. Plaintiff explains that
Defendants’ counsel “answered the email rejecting Plaintiff’s requested conference and
stat[ing] all communications will only be done in writing.” (Doc. No. 54, PageID 612).
On that same date, Defendants’ counsel informed Plaintiff that sending letters by mail was
the “primary method of communication used by conversation between our office and pro
se inmate cases [sic] ….” (Doc. No. 67, PageID 702). Counsel also noted, “The current
COVID-19 protocols in place indicate that this would indeed be the best method with
restrictive movements and related procedures in place….” Id.
The parties’ discovery dispute continued through April and into May 2020 with no
resolution. On April 15 Plaintiff filed his first Motion to Compel, seeking an order
requiring Defendants to answer his Interrogatories and “provide [him] with the requested
discovery.” (Doc. No. 54, PageID 612). He offered six supporting grounds. Id. at 613-17.
On May 6, Defendants’ counsel filed a Memorandum opposing Plaintiff’s Motion to
Compel. (Doc. No. 56).
Meanwhile, back on April 30, Defendants’ counsel wrote to Plaintiff asking for an
additional 30 days to respond to Plaintiff’s Requests for Production of Documents. (Doc.
No. 67, PageID 703). Counsel noted that he sought an extension until June 2. Id. It is
unclear whether Plaintiff responded to this in writing. Based on his next actions, he most
likely did not agree to the requested extension.
On May 18, Plaintiff filed Objections and a Second Motion to Compel Discovery,
again seeking an order requiring Defendants to provide discovery. (Doc. No. 58). His
third Motion to Compel followed on June 3. (Doc. No. 59).
Thus far, the parties’ whack at discovery had accomplished little. Things began to
move in a more productive direction when, on June 17, 2020, Defendants’ new—and
present—counsel wrote a letter informing Plaintiff that she had taken over the case from
Defendants’ former counsel. (Doc. No. 67, PageID 704). She explained that (1)
Defendants’ responses to Plaintiff’s Interrogatories had been completed but needed to be
signed by an authorized member of the Ohio Parole Board; and (2) she was gathering and
reviewing documents in response to his Requests for Production, and she hoped to send
them to Plaintiff “as expeditiously as I can.” Id. She was true to her word: On June 22,
she sent him Defendants’ responses to his Interrogatories and Requests for Production, and
she produced responsive documents to him. Id. at 705; see Doc. No. 81.
On June 24, Defendants’ counsel filed a Memorandum in Opposition to Plaintiff’s
Third Motion to Compel, arguing that because Defendants had responded to all Plaintiff’s
discovery requests, his third Motion to Compel was moot. (Doc. No. 64, PageID 663).
In early July, Plaintiff filed a Motion Requesting a Scheduled Conference Via
Telephone to Discuss and Resolve Issues in Discovery. (Doc. No. 65). Plaintiff expressed
his willingness to enter into a protective order in which he would agree to use confidential
information produced by Defendants in discovery “only for the purpose of prosecuting or
defending this litigation, or assisting counsel in prosecuting or defending this litigation, and
shall not use Confidential Information outside this litigation ….” Id. at 667. He suggested
that if Defendants believed disclosure of the information he seeks would implicate security
matters, they should seek a protective order. And he emphasized that the public has a right
to everyman’s evidence to hold government officials accountable, and he should have
access to information necessary to establish his claim. Id.
In mid-July, Plaintiff filed a Motion to Test the Sufficiency of Defendants’
Objections to Discovery Production—Interrogatory Answer, and Fourth Motion to
Compel. (Doc. No. 67). He criticized many aspects of Defendants’ discovery responses,
including their boilerplate objections and lack of specificity, failure to provide a privilege
log, failure to move for a protective order, and failure to timely respond to his discovery
requests. Plaintiff also argued relevance:
The information sought is highly relevant in proving that [D]efendants
intentionally violated [his] due process right, including substantial due
process right to a fair parole hearing by intentionally, knowingly, fabricating
false reports/information in consideration of parole, and then relying on the
false information/reports to decide parole….
Id. at 700-01.
Defendants timely opposed Plaintiff’s Motion to Test the Sufficiency of
Defendants’ Objections and his Fourth Motion to Compel, contending that they had
responded to all of Plaintiff’s discovery requests and that Plaintiff had steadfastly refused
to make a good-faith effort to resolve “the dispute, whatever it is, with Defendants’ legal
counsel ….” (Doc. No. 71, PageID 729).
The undersigned Judicial Officer issued an Order denying Plaintiff’s Fourth Motion
to Compel as moot in light of Defendants’ responses and production of documents. (Doc.
No. 66). Plaintiff’s Objection, and Defendants’ response, soon followed. Upon her review
and recommittal order, U.S. District Judge Sarah D. Morrison observed, “it appears that
while Mr. Dodson’s request for a response to his discovery requests was moot, his
objections to the contents of this discovery response was not moot. That dispute has yet to
be resolved.” (Doc. No. 72, PageID 732).
On August 18, Plaintiff filed his Reply in Support of his Motion to Test the
Sufficiency of Defendants’ Objections. (Doc. No. 73). On August 21, Defendants filed
their privilege log, explaining that out of the thirty pages of documents they had produced
to Plaintiff, three redactions were made on the first page—namely, Plaintiff’s day and
month of birth and the names of his victims “to prevent further trauma and pursuant to
OAC Ann. 5120:1-1-36 7.1.” (Doc. No. 76, PageID 752). Defendants’ counsel further
reported, “No documents from Dodson’s 2018 parole hearing were withheld.” Id.
On August 31, 2020, Plaintiff filed Objections to Defendants’ Privilege Log and
Request for an Order Directing Defendants to Provide Requested Discovery, and he moved
“for a second time for [a] discovery conference.” (Doc. No. 78, PageID 755). He raised
four objections to Defendants’ privilege log, including waiver and lack of clarity in
Defendants’ boilerplate objections. Id. He responded to Defendants’ objections to his
Interrogatories 4 and 11. He also challenged Defendants’ improper boilerplate objections
and failure to verify that a diligent search was made by the custodian of records for
responsive documents. And he veered into his due-process claim by alleging, in part, that
Defendants fabricated the false report that he “raped a mentally retarded White female,
caused her to become pregnant with a N****R child, resulting in the child being put up for
adoption.” Id. at 760 (Plaintiff’s capitalization). In conclusion, he emphasized, “Again,
the plaintiff …, was not indicted, accussed [sic], or found guilty by a jury, of raping a
mentally retarded white female causing her to become pregnant with a N****R child that
resulted in giving the N****R child up for adoption.” Id. at 761 (Plaintiff’s capitalization).
And Plaintiff asserted that given his acceptance of responsibility for his crimes, his
repeated apologies to his victims, and his hard work at rehabilitating himself and serving
the community while incarcerated, he “does not deserve to be labeled as a CRAVED [sic]
N****R who[] raped a mentally retarded white female causing her to become pregnant
resulting in the adoption of the child….” Id. (Plaintiff’s capitalization).
On September 14, Plaintiff filed a Memorandum in Support of Requested Status
Conference in Resolution of Discovery Dispute. (Doc. No. 85). He repeated many of his
arguments and asserted that Defendants have interfered with discovery to the point where
their conduct is sanctionable.
III. Discussion
A. Discovery Standards
The standards applicable to the parties’ discovery activities and dispute are set in
Fed. R. Civ. P. 26:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “[T]he court must limit the frequency or extent of discovery ... if
it determines that ... the proposed discovery is outside the scope permitted by Rule
26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii).
B. Plaintiff’s Motions to Compel and
Objection to Defendants’ Privilege Log
Plaintiff’s First Motion to Compel challenged the assertions that Defendants’
original counsel raised in his March 31, 2020 letter. See Doc. No. 54. When Plaintiff
responded to Defendants’ opposition to Plaintiff’s First Motion to Compel, he also filed a
Second Motion to Compel seeking an Order requiring Defendants to respond to his
discovery requests. See Doc. No. 58. His Third Motion to Compel, dated June 3, 2020,
reported that Defendants still had not responded to his discovery requests. He again sought
an order requiring Defendant to respond to his discovery requests. See Doc. No. 59.
Although Plaintiff was doubtlessly frustrated by Defendants’ initial
nonresponsiveness, Defendants eventually answered his Interrogatories and Requests for
Production of Documents. In doing so, they listed 18 General Objections and
Reservations, and they raised many objections to each Interrogatory and Request for
Production. Because Plaintiff’s First, Second, and Third Motions to Compel pre-dated
Defendants’ discovery responses, these Motions did not challenge the contents of
Defendants’ eventual responses. Further, these Motions (Doc. Nos. 54, 58, 59) are now
moot because they sought an order compelling Defendants to respond to his discovery
requests, and Defendants have since responded to his discovery requests.
What remains at issue are the contents of Defendants’ objections and responses to
Plaintiff’s Fourth Motion to Compel. He contends that Defendants’ objections fail because
they (1) are boilerplate; (2) lack specificity; (3) are not explained in a privilege log; (4) are
rote in nature; (5) are not accompanied by related motions for protective order; and (6) are
untimely (“Defendants failed to object to discovery request within 30 … days”). (Doc. No.
67, PageID 694).
Boilerplate objections generally have no utility in large part because “[t]he grounds
for objecting to an interrogatory must be stated with specificity.” Fed. R. Civ. P. 33(b)(4);
see Fed. R. Civ. P. 34(b)(2)(B); e.g., Davis v. American Highwall Mining, LLC, 6:19-
CV00096-MAS, 2020 WL 5494520, at *2 (E.D. Ky. 2020) (“a boilerplate objection has no
legal effect.”). But, even if some of Defendants’ objections may be fairly characterized as
boilerplate or lacking specificity, this does not help Plaintiff obtain additional discovery.
This is because Defendants have also provided substantive responses to all Plaintiff’s
Interrogatories, except Interrogatory No. 6, and all his Requests for Production of
Documents. See Doc. No. 81, PageID 786-93, 806-10.
Plaintiff’s Interrogatory No. 6 seeks the identity of those who submitted any
information, statement, testimony, or document to the Ohio Parole Board in connection
with his 2018 parole proceedings, including (in part) victim’s representatives, member or
prosecutors of the Franklin County Prosecutor’s Office, and personnel at the Richland
Correctional Institution (where Plaintiff is incarcerated). Id. at 787-88. Defendants
responded:
Objection: Defendants object to this discovery request as it is vague,
ambiguous, scope or subject [sic], overly broad, unduly burdensome,
oppressive, and calls for unbounded discovery. Some records if released
could present a security risk to an institution operated by the department
or could jeopardize the safety of department personnel. In addition,
records that identify the victim of a crime committed by the offender, or
contain statements made by informants, statements made by prosecuting
attorneys and judges concerning the offender, witness protection
information, inmate separation information, juvenile criminal history and
diagnostic and testing information of the offender pursuant [sic] are
prohibited from release pursuant to OAC Ann. 5120:1-1-36. Defendants
also object as to relevancy.
Id. at 788.
Even if some of Defendants’ objections may be fairly characterized as boilerplate or
vague, Defendants are correct that Ohio administrative law prevents the Ohio Parole Board
from disclosing the non-public information Plaintiff seeks in Interrogatory No. 6. See Ohio
Admin. Code § 5120:1-1-36(F), (G), (I).
Plaintiff’s stated willingness to enter into a protective order to shield
confidential information, such as victim-impact statements, or information that might pose
an institutional or personal-security threat does not constitute a viable solution in the
circumstances of this case. As just explained, Ohio administrative law prohibits
Defendants from releasing certain non-public information to Plaintiff. A protective order
would not nullify this prohibition or override its underlying concerns—most significantly,
institutional security, informant and prosecutor safety, and preventing additional harm to
victims.
Plaintiff’s next point—that Defendants have not produced a privilege log—was
valid until August 21, 2020, the date on which Defendants filed their privilege log. (Doc.
No. 76). Since then Plaintiff has focused on Defendants’ responses to his Request for
Production No. 4 and Interrogatory 11.
His Request for Production No. 4 concerns 2018 parole records. He seeks:
4. Any/all materials considered and relied upon by the Parole Board in
connection with the 2018 request for parole, official or unofficial,
including but not limited to:
a. Any victim impact statements, including statements from the
victim’s representatives.
b. Any correspondence and/or communications between or
between or among OPB Members or OPB staff relating to
formal or informal hearings, board meetings, telephone
conferences, emails, and text messages.
c. Internal memoranda among OPB Members.
d. Notes among OPB Members.
e. Minutes.
f. Vote Sheets of any/all OPB members whom participated in
deciding plaintiff’s parole.
(Doc. No. 78, PageID 757; Doc. No. 81, PageID 808).
Defendants raised numerous objections to Plaintiff’s Request for Production No. 4,
contending that “Parole Board members review a multitude of records when reviewing an
inmate’s eligibility for parole typically on laptop computers. There is not one file that
contains all of the information reviewed.” Id. Defendants further maintained that Ohio
Admin. Code § 5120:1-1-36 prohibits the release of much of the information—e.g., records
identifying the victim of a crime committed by the offender, and statements by informants,
prosecuting attorneys, and others.” (Doc. No. 81, PageID 808). And Defendants explained
that “the only disclosable records permitted by OAC Ann. 5120:1-1-36 and maintained by
Defendants are contained in the Plaintiff’s 2018 Parole packet, paginated as 000001-27.”
Id.
Plaintiff’s Interrogatory No. 11 asks Defendants to identify all the documents the
OPB reviewed, consulted, or relied on when considering his July 2018 parole application.
Id. at 789. Defendants raised the same objections and responses to both Interrogatory No.
11 and Request for Production No. 4. (Doc. No. 78, PageID 757-58; Doc. No. 81, PageID
789-90, 808).
Regardless of whether some of Defendants’ responses to Plaintiff’s Request for
Production No. 11 and Interrogatory No. 4 constituted boilerplate objections, Defendants
specifically and sufficiently responded by relying on Ohio Admin. Code § 5120:1-1-36 and
by otherwise producing the responsive documents from Plaintiff’s July 2018 parole
proceedings.
Plaintiff next maintains that Defendants must produce additional responsive
discovery because they have not filed a Motion for a Protective Order. Yet Defendants are
not required to file a Motion for Protective Order, although they may have done so in
response to Plaintiff’s Interrogatories and Requests for Production of Documents. See Fed.
R. Civ. P. 26(c). Additionally, there was no error in the fact that Defendants did not seek a
protective order but instead chose to oppose Plaintiff’s multiple Motions to Compel and
produce Plaintiff’s 2018 parole records.
Plaintiff also contends that Defendants’ failure to respond to his Interrogatories and
Requests for Production within thirty days constitutes a waiver of any objections to them
even objections based on privilege. While this may generally true, the circumstances in the
present case do not warrant a finding that Defendants have waived their objections due to
their tardy discovery responses. Although Defendants’ original counsel was not as diligent
as he should have been in responding to Plaintiff’s Interrogatories and Requests for
Production, Defendants’ current counsel has been diligent in her discovery work. Plaintiff,
moreover, has not shown that he has been prejudiced by Defendants’ original counsel’s
tardiness in responding to his discovery requests, and none appears in the case record.
Indeed, throughout discovery he has filed numerous Motions and memoranda containing
substantive arguments and has not asserted that his ability to litigate his discovery
arguments have been hindered by the initial delay in Defendants’ responses. In these
circumstances, waiver should not be imposed upon Defendants.
C. Informal Discovery Telephone Conference
District Judge Morrison observed in her recommittal Order, “Defendants have stated
a reluctance to speak with Mr. Dodson via the telephone because he is incarcerated and
because of the pandemic. Given this lack of communication and Mr. Dobson’s objections
to Defendants’ discovery response, a status conference in this case may be appropriate.”
(Doc. No. 72, PageID 733 (citation omitted)).
As District Judge Morrison explained, S.D. Ohio Civ. R. 37.1 typically disfavors
judicial intervention in discovery disputes. It instead asks the parties to resolve discovery
disputes themselves and “to turn to the Court only as a last resort.” (Doc. No. 72, PageID
732-33). The parties in the present case were not able to resolve their discovery disputes,
and Plaintiff consequently requested a telephone conference. (Doc. No. 65).
The above history of the parties’ discovery dispute reveals that they have
extensively briefed their contentions and have become entrenched in their opposing
positions. See supra, § II(B). Their entrenchment would likely be counter-productive
during an informal discovery phone conference, which in most situations would occur in a
less adversarial, more cooperative atmosphere. See Rule 37.1 (“After extrajudicial means
for the resolution of differences about discovery have been exhausted, in lieu of
immediately filing a motion under Fed. R. Civ. P. 26 or 37, any party may first seek an
informal telephone conference with the Judge assigned to supervise discovery in the
case.”).
Accordingly, an informal discovery telephone conference is not warranted.
IT IS THEREFORE ORDERED THAT:
1. Plaintiffs’ First, Second, and Third Motions to Compel (Doc. Nos. 54, 58,
and 59) are DENIED;
2. Plaintiff’s Motion to Test Sufficiency of Defendants’ Objections to
Discovery (Doc. No. 67) is GRANTED and the sufficiency of Defendants’
Objections have been considered as set forth herein; Plaintiff’s Fourth
Motion to Compel (Doc. No. 67) is DENIED;
3. Plaintiff’s Objection to Defendants’ Privilege Log (Doc. No. 78) is
OVERRULED, and Plaintiff’s Request for an Order Directing Defendants to
Produce Discovery (Doc. No. 78) is DENIED; and
4. Plaintiff’s Motion Requesting a Scheduled Conference Via Telephone (Doc.
No. 65) is DENIED.
October 9, 2020 s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge