The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTHONY L. MCKINNEY, : Case No. 2:20-cv-1450
:
Plaintiff, :
: District Judge Michael H. Watson
vs. :
Magistrate Judge Peter B. Silvain, Jr.
:
DENISE PADDOCK, et al., :
:
Defendants. :
:
ORDER
This matter is before the Court on Plaintiff’s “Motion for An Order Compelling Disclosure
or Discovery Federal. Rule. Civil Procedure. (a)(3)(B)”(“First Motion to Compel”) (Doc. #95);
Plaintiff’s “Motion to Amend and Supplement and Order Compelling Disclosure or Discovery
Federal. Rule. Civil Procedure. (a)(3)(B)” (“Second Motion to Compel”) (Doc. #97); Defendants’
memorandum in opposition to these motions to compel (Doc. #107); Plaintiff’s “Motion for an
Order Compelling Disclosure, Discovery Fed R. 34, 36, & 37 Due to Defendants Failure to
Properly Respond to Admissions and the Late Turning Over of Admissions [Plaintiff] Request
Leave to Issue [Interrogatories]” (“Third Motion to Compel”) (Doc. #116); Defendants’
memorandum in opposition to this motion to compel (Doc. #118); Plaintiff’s “Motion to Strike”
(Doc. #117); Defendants’ memorandum in opposition to the Motion to Strike (Doc. #119);
Plaintiff’s reply memorandum in support of both his Third Motion to Compel and Motion to Strike
(Doc. #121); “State of Ohio, Interested Party’s Motion for a Protective order; in the alternative
Motion to Quash Interrogatories Served Upon William Cool, Non Party [Doc. 122]” (Doc. #124);
Defendant Shawn Frye’s Motion for a Protective Order (Doc. #125); Defendant Ryan Kammer’s
Motion for a Protective Order (Doc. #126); Defendant Denise Paddock’s Motion for a Protective
Order (Doc. #127); Defendant Brian Preston’s Motion for a Protective Order (Doc. #128); and
Plaintiff’s memorandum in opposition to these protective orders (Doc. #129).
I. BACKGROUND
On August 24, 2022, District Judge Michael H. Watson recommitted this matter for a ruling
on Plaintiff’s First Motion to Compel (Doc. #95) and Plaintiff’s Second Motion to Compel (Doc.
#97). (Doc. #104). As a result, the undersigned issued an Order on August 26, 2022, instructing
Defendants to file a response to Plaintiff’s motions no later than September 9, 2022. (Doc. #105).
Defendants timely filed their response to these motions on September 8, 2022. (Doc. #107).
On October 11, 2022, Plaintiff filed his Third Motion to Compel and Motion to Strike.
(Doc. #s 116, 117). Shortly thereafter, Defendants filed their responses to these motions (Doc. #s
118, 119) and Plaintiff filed his reply (Doc. #121).
Then, on November 23, 2022, Plaintiff filed what appear to be five sets of interrogatories
directed at non-party William Cool and Defendants Frye, Kammer, Paddock, and Preston. (Doc.
#122). In response, Defendants and the State of Ohio filed motions for protective orders,
requesting that they be protected from answering Plaintiff’s newly filed interrogatories. (Doc. #s
124-28).
As a result of this “flurry of ongoing discovery-related activity,” District Judge Watson
issued an Opinion and Order striking the pending summary judgment motions (Doc. #s 82, 83, and
110). (Doc. #130). In so doing, District Judge Watson also rejected as moot the undersigned’s
pending Report and Recommendation (Doc. #96) along with Plaintiff’s extension of time to move
for summary judgment (Doc. #111). Id. District Judge Watson further indicated that the
undersigned would resolve all remaining discovery motions and then establish a new briefing
schedule for summary judgment upon the definitive close of discovery. Id.
Accordingly, the undersigned will now address the remaining discovery issues.
II. LAW & ANALYSIS
A. Plaintiff’s Requested Discovery
As noted above, Plaintiff has filed three motions to compel, all of which relate to discovery
ordered by the undersigned at a discovery conference held on November 12, 2021. (Doc. #s 96,
97, 116).1 Federal Rule of Civil Procedure 37 permits a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests, provided that the
motion to compel includes a certification that the movant has, in good faith, conferred or attempted
to confer with the party failing to respond to the requests. Fed. R. Civ. P. 37(a)(1). Here, the Court
is satisfied that this prerequisite has been satisfied as the discovery at issue concerns that which
has been previously ordered by the undersigned.
In Plaintiff’s First Motion to Compel, he requests the Court compel Defendants to produce
certain documents that were identified during the discovery teleconference held before the
undersigned on November 12, 2021. (Doc. #95, PageID #s 1526-27). Specifically, Plaintiff states:
This court ordered the defendants to turn over discovery evidence of the criminal
investigation initiated by the defendants, with the FBI ODRC and other agencies,
concerning the documents sent for investigation, and the results of the investigation
by these agencies. Also defendants were ordered to turnover admission, that they
were sent via mail or clerk as stated in the certificate of service to the defendants.
Defendants were ordered to turn over documents relating to sign in sheets in the
law library and the officers pass list to demonstrate plaintiffs due process rights.
Also defendants were ordered to turn over the name the conduct report is traded
under on the stock market and the amount.
Id. at 1526.
1 See Doc. #120 (Transcript of Proceedings held on November 12, 2021, before Judge Peter B. Silvain, Jr.).
Shortly thereafter, Plaintiff filed his Second Motion to Compel, in which he reiterated his
request for these previously identified documents. (Doc. #97, PageID #s 1553-54). Additionally,
Plaintiff requested that the Court compel Defendants produce “any and all documents that has been
reduced to writing, that is withheld in any medium via letters, email, interoffice communication[.]”
Id. at 1554.
In his Third Motion to Compel, Plaintiff alleges that “[d]iscovery is still outstanding and
withheld,” and points to Defendants failure to “turn over discovery of the results of the
investigation, based on documents confiscated from plaintiff 3/18/19 by defendants and turned
over to FBI, ODRC, & State Highway Patrol for [Investigation].” (Doc. #116, PageID #2176).
Here, Plaintiff points to the discrepancy in statements made by Lori Duckworth, Defendants’ prior
counsel, at the November 12, 2021 discovery conference and Defendants’ current position on this
investigation. Id. at 276-78. Finally, Plaintiff maintains that Defendants are deficient in producing
a list of names of persons conducting the Rules and Infraction Board (“R.I.B.”) proceedings, the
April 12, 2019 law library sign-in sheet, and the officer pass list from April 10, 11, and 12, 2019.
Id. at 2179.
In response, Defendants maintain that they have complied with the Court’s prior discovery
orders and have filed over 500 pages of documents that were produced to Plaintiff to demonstrate
this compliance. (Doc. #s 107, 118). Accordingly, the undersigned will address each category of
requested discovery in turn.
1. Defendants’ responses to Plaintiff’s “requests for admissions”2
Plaintiff contends that Defendants have not complied with the Court’s order to produce
their responses to his requests for admissions. (Doc. #95, PageID #1526; Doc. #97, PageID
2 While Plaintiff labels and refers to this discovery as “requests for admissions,” he formulates his requests as
questions, and so Defendants have reasonably responded to the requests as if they were interrogatories.
#1554). At the time of the November 12, 2021 discovery conference, counsel for Defendants
indicated that these responses had already been produced to Plaintiff. (Doc. #120, PageID #2296).
However, Plaintiff stated that he had not received responses for the six Defendants. Id. at 2296-
98. As a result, the undersigned ordered Defendants to provide Plaintiff with responses to all the
requests for admissions within 60 days. Id. at 2299-2300.
On January 7, 2022, Plaintiff filed six separate sets of requests for admissions against
Defendants Frye, Paddock, Kammer, Robinson, and Preston, and non-party William Cool, (Doc.
#s 74-79), which the Court infers are the six requests for admissions Plaintiff had previously
referenced. In response to Plaintiff’s request to compel the responses to these admissions,
Defendants’ current legal counsel acknowledged being unable to determine when the responses
were sent to Plaintiff by Defendants’ prior legal counsel and, therefore, attached the responses to
the memorandum in opposition to Plaintiff’s motions to compel. (Doc. #107, PageID #1622-23).
Upon review of the record, it appears that, apart from Defendant Robinson, Defendants
have filed the responses to these requests for non-party William Cool and all the Defendants. (Doc.
#107-1, PageID #s 2084-2123). Defendants and Mr. Cool responded with various boilerplate
objections but also answered every single request over their objections. See id. Upon review, the
Court finds that Defendants’ and Mr. Cool’s responses to these requests are sufficient.
Accordingly, Defendants Frye, Paddock, Kammer, and Preston, and non-party William
Cool have satisfied their obligation to respond to Plaintiff’s request for admissions. However,
Defendants are ORDERED to produce the responses to Plaintiff’s requests for admissions against
Defendant Robinson contained in the record at Doc. #77. Thus, to the extent that Plaintiff’s
motions to compel ask the Court to compel Defendants to produce Defendant Robinson’s
responses to Plaintiff’s requests for admissions, Plaintiff’s motions (Doc. #s 95, 97) are
GRANTED.
2. Law library sign-in sheets from April 12, 2019
In all three motions to compel, Plaintiff claims that Defendants failed to turn over the April
12, 2019 law library sign-in sheets. (Doc. #95, PageID #1526; Doc. #97, PageID #1554; Doc.
#116, PageID #2179). At the discovery conference, Plaintiff explained that he requested the law
library sign-in sheets so as to “demonstrate that [he] was in the library at the time because the
conduct report did not demonstrate the location, which is [an] important part of the due process
violation[.]” (Doc. #120, PageID #2269). As a result, the undersigned found that Plaintiff’s
request was reasonable and ordered Defendant to produce the library sign-in sheets, provided that
information related to inmates other than Plaintiff could be redacted. Id. at 2270-71.
In response, Defendants acknowledge that they could not locate a record of when this
discovery was previously sent to Plaintiff, so they indicated that redacted library sign-in sheets for
November 2018 through April 28, 2019, which would encompass the April 12, 2019 date that
Plaintiff requested, were sent to Plaintiff as part of their response. (Doc. #107, PageID #1622;
Doc. #118, PageID #2195).
Upon review of the record, it appears that Defendants did produce law library sign-in sheets
for certain dates between November 2018 and April 28, 2019. (Doc. #107-1, PageID #s 2036-
83). However, while there are sign-in sheets with dates falling within this five-month period, the
dates produced are sporadic and not comprehensive. See id. Significantly, the production does
not contain the sign-in sheets from April 12, 2019. See id.
Based on the foregoing, Defendants are ORDERED to produce the redacted law library
sign-in sheets from April 12, 2019. If Defendants are unable to locate the sign-in sheets from April
12, 2019, then Defendants must affirmatively state why they are unable to produce the documents
and what steps they took to locate the documents. Thus, to the extent that Plaintiff’s motions to
compel ask the Court to compel Defendants to produce the redacted law library sheets from April
12, 2019, Plaintiff’s motions (Doc. #s 95, 97, 116) are GRANTED.
3. Officers’ pass lists
Plaintiff has also repeatedly requested the officers’ pass lists in his motions to compel. In
his initial Request for Production of Documents, Plaintiff requested “[t]he pass list/[t]he sign in
list to receive a pass from the block officer, 4-16-19, 4-15-19, 4-17-19, 4-18-19.” (Doc. #41-5,
PageID #601). At the discovery conference, Plaintiff explained that that “pass from the block
officer goes toward the due process to show that [Plaintiff] did not receive a pass to the R.I.B.
Board room. That they did not give [him] 24-hour notice to prepare a defense or to pack [his]
property up or anything to prepare –to gather witnesses—so that’s what that goes toward.” (Doc.
#120, PageID #2269). The undersigned found that this request was reasonable and subsequently
ordered Defendant to produce the officer pass lists for April 15, 2019 through April 18, 2019,
provided that information related to inmates other than Plaintiff could be redacted. Id. at 2270-71.
In his first two motions to compel, Plaintiff simply requested that Defendants be compelled
to produce the officers’ pass lists without reference to specific dates. (Doc. #95, PageID #1526;
Doc. #97, PageID #1554). In his Third Motion to Compel, Plaintiff requested that the Court
compel Defendants to produce the officers’ pass list for April 10, 11 and 12, 2019. (Doc. #116,
PageID #2179). In response, Defendants point out that they were only ordered to produce the
officers’ pass lists for April 15, 2019 through April 18, 2019 as opposed to April 10, 2019 through
April 12, 2019. (Doc. #118, PageID #2195).
Upon review of the record, it appears that Defendants did, in fact, produce the pass
designation reports for April 15, 2019 through April 18, 2018, copies of which were attached to
their memorandum in opposition to Plaintiff’s motions to compel. (Doc. #107-1, PageID #s 1912-
2035). Accordingly, the Court finds that Defendants complied with the discovery conference order
on this issue, and Plaintiff has not presented sufficient reasons for requesting pass designation lists
for different dates than he previously requested. Thus, to the extent that Plaintiff’s motions to
compel ask the Court to compel Defendants to produce the officers’ pass lists for April 10, 2019
through April 12, 2019, Plaintiff’s motions (Doc. #s 95, 97, 116) are DENIED.
4. Name of conduct report that is traded on the stock market and amount
Plaintiff also requested that the Defendants produce documentation regarding the name
under which conduct reports are allegedly traded on the stock market as well as the amount they
are worth. (Doc. #95, PageID #1526; Doc. #97, PageID #1554). At the November 12, 2021
discovery conference, the undersigned found that the Defendants had sufficiently responded to
Plaintiff’s request in claiming that, to their knowledge, “conduct reports are not traded on the stock
market and have no monetary value[,]” but that “institutions are permitted to charge $0.05 per page
to cover the cost of copying documents.” (Doc. #120, PageID #2242). Nonetheless, the Court
ordered Defendants to produce documents that “referenced that $0.05 per page for copying” as
well as “any documents which would in some way reference the fact that conduct reports have a
financial value[.]” Id.
Plaintiff, however, has only requested that the Court compel Defendants “to turn over the
name of the conduct report [that] is traded under the stock market and the amount.” (Doc. #95,
PageID #1526; Doc. #97, PageID #1554). Having previously found that Defendants had
sufficiently responded to this request, the Court reiterates that Defendant has no outstanding
discovery obligations on this issue. Therefore, to the extent that Plaintiff requests Defendants
produce documentation regarding the name and amount that conduct reports are allegedly traded
on the stock market, Plaintiff’s motions (Doc. #s 95, 97) are DENIED.
5. Any and all documents that have been reduced to writing
In his Second Motion to Compel, Plaintiff reiterated the outstanding discovery identified
in his First Motion to Compel and requested that the Court compel Defendants produce “any and
all documents that has been reduced to writing, that is withheld in any medium via letters, email,
interoffice communication[.]” (Doc. #97, PageID #1554).
As outlined in this Order, the Court has addressed each discovery request that Plaintiff has
specifically articulated as being deficient. However, Plaintiff’s generic request that Defendants
produce “any and all documents that has been reduced to writing, that is withheld in any medium
via letters, email, interoffice communication” fails to sufficiently identify the alleged deficiencies
in the Defendants’ production to allow the undersigned to conduct a meaningful review. See
Ridenour v. Ohio Dep’t of Rehab. & Correction, No. 2:10- CV-00493, 2013 WL 80321, at *1
(S.D. Ohio Jan. 7, 2013), on reconsideration, No. 2:10-CV-00493, 2013 WL 2243749 (S.D. Ohio
May 21, 2013). As a result, the undersigned cannot evaluate the adequacy or inadequacy of
Plaintiff’s discovery requests or Defendants’ responses. See Peterson v. Kramer, No. 3:13-CV-
187, 2015 WL 1954615, at *3 (S.D. Ohio Apr. 29, 2015) (“The record is simply too inadequate to
make a meaningful ruling on the motion.”). Therefore, to the extent that Plaintiff’s motions request
the Court to issue a carte blanche order to compel, his motions (Doc. #s 95, 97) are DENIED.
6. Documents containing names of persons conducting the R.I.B. proceedings
In his Third Motion to Compel, Plaintiff states that Defendants have failed to provide the
names of the persons presiding over his R.I.B. proceedings in April 2019. (Doc. #116, PageID
#2179). In response, Defendants point out that this information is already in Plaintiff’s possession
as the April 2019 R.I.B. hearing documentation was attached to his Complaint. (Doc. #118,
PageID #2194) (citing Doc. #4, PageID #s 190-96).
This issue was also addressed at the November 12, 2021 discovery conference. At the
conference, the undersigned advised Plaintiff that his request was better suited as an interrogatory,
but since Plaintiff framed the request as a production of documents, the Court would interpret it as
a request for documents that would reflect the names of the individuals on the R.I.B. (Doc. #120,
PageID #s 2260-61). The undersigned further noted that the Defendants produced R.I.B.
documents, affixed with Bates-Stamp numbers 1 through 4, which purported to contain signatures
of the presiding officers and directed Plaintiff to review those documents for the names of the
officers he requested. Id. at 2261. In his reply memorandum, Plaintiff notes that he cannot read the
names of the signatures. (Doc. #121, PageID #2315).
Upon review of the record, it appears that Plaintiff does have the documents from the R.I.B.
proceeding as they were attached as an exhibit to his own Complaint. (Doc. #4, PageID #s 190-
96). Nonetheless, the Court agrees with Plaintiff that not all the signatures on these documents are
legible.
Accordingly, Plaintiff’s Third Motion to Compel (Doc. #116) is GRANTED to the extent
that Defendants are ORDERED to produce documentation with the typewritten names of the
officers presiding over Plaintiff’s April 2019 R.I.B. hearing.
7. Evidence of the criminal investigation by the Defendants with the FBI, ODRC, and
other agencies and results of that investigation
The final category of evidence for which Plaintiff has most adamantly pursued in each of
his motions to compel is the evidence related to a criminal investigation by the Defendants with
the FBI, ODRC, and/or other entities and the results of that investigation. (Doc. #95, PageID
#1526; Doc. #97, PageID #1554; Doc. #116, PageID #s 2176-78). Plaintiff has requested this
discovery as a result of statements made by Lori Duckworth, Defendants’ prior counsel, at the
November 12, 2021 discovery conference that Plaintiff was “exonerated” following an
investigation by the FBI. (Doc. #116, PageID #2177). In September 2022, however, Ms.
Duckworth accepted employment outside the Ohio Attorney General’s Office and was removed
as Defendants’ counsel in this case. (See Doc. #114; Notation Order dated Sept. 27, 2022).
In response, Defendants maintain that they are unable to produce such documents as they
do not exist. (Doc. #107; PageID #1622; Doc. #107-1; PageID #1902; Doc. #118, PageID #s
2193-94; Doc. #119, PageID #s 2198-99). To support their position, Defendants submitted a
“Declaration of [Defendant] Ryan Kammer,” in which he attests that “[t]he investigation of
[Plaintiff] was conducted internally. Nothing regarding the investigation was forwarded to the FBI
or BCI regarding potential sovereign citizen activities by Plaintiff.” (Doc. #107-1, PageID #1902).
Defendants also point to the emails and a conduct report related to the internal investigation of
Plaintiff’s security threat group activities, the Security Threat Group Activity Notice, and the
decision of the R.I.B., all of which support a finding that an internal investigation was conducted
into Plaintiff’s security threat group activities and that he was, internally, found guilty of a Rule
17 violation. (See Doc. #107-1, PageID #s 1899-1901; 1903-06; Doc. #4, PageID #s 187-97).
Significantly, neither this evidence nor Defendant Kammer’s Declaration addresses why
Ms. Duckworth would state that Plaintiff’s materials had been sent to the FBI and that he was
“exonerated” of a rules’ infraction violation when all the other evidence of record points otherwise.
On this point, Defendants’ current legal counsel simply states: “Regarding the unsworn statements
of Attorney Lori Duckworth …, Defendants can only represent that Attorney Duckworth was
mistaken when she informed the Court that there was an investigation outside of ODRC regarding
Plaintiff’s actions on March 18, 2019 and the documents which were seized.” (Doc. #118, PageID
#2193).
Such a response fails to recognize the circumstances under which Ms. Duckworth made
these representations to the Court. That is, the potential existence of an outside investigation was
not a fact that originated with Plaintiff or the Court but, instead, with Ms. Duckworth. Indeed, it
was Ms. Duckworth who informed Plaintiff and the Court that Plaintiff’s documents were sent
outside the prison for analysis. Further, it was Ms. Duckworth who argued that the discovery was
not relevant because Plaintiff was found to not be a member of a security threat group—a statement
that, again, is undermined by the evidence that has been produced on this point. To be sure, the
colloquy between the Court and Ms. Duckworth on this issue is excerpted below:
THE COURT: However, with regard to any allegations that the
Government would make, and his allegation that defamed –
as he stated – he was a gang member, potentially if the
Government – or the Defendants in this case are asserting
the fact that he was, in fact, a gang member, they’re going to
use that as defense – as truth of a defense to a defamation
suit, if that is one of the defenses that the Defendants’ intend
to use, then they should produce any and all documents
which would reflect whether or not the [Plaintiff] is
considered part of a gang.
Any questions about that one, Mr. McKinney?
MR. McKINNEY: Yes, yes, Your Honor. I, I agree with you, and really what I
want is documents that, that they have alleged that are
Sovereign Citizens, which is a defamatory name or any, any
– any type of gang bang considering that defamatory name.
I was just trying – it hasn’t been to[o] long since they start
using that, so I was asking for documentation toward that
and anything they would use against me as far as that being
in the computer and stuff like that as far as the institution,
DCR, or any Federal files or anything like that, but, yes,
Your Honor.
THE COURT: All right. So we refine that to documents regarding your
being a Sovereign Citizen or a gang member? Go ahead, Ms.
Duckworth.
…
MS. DUCKWORTH: … I think the catalyst for this case was Mr. McKinney was
with someone. They were doing things in the law library.
The law librarian saw things that triggered her training. She
thought that – she was slightly alarmed, and she thought that
she should take this for investigation, which is – which is
completely, you know, standard in a prison, so she sent them
somewhere, had, I think, the F.B.I. and also the security
threat group experts look at them.
Mr. McKinney was ultimately not charged with that, but it
was simply an investigation, so we’re not – we’re not trying
to rely on the fact that he was a gang member.
It was a standard prison procedure where there’s a suspicion
of a security threat, that it was investigated, and it was
resolved.
…
THE COURT: Any documents which would be where the institution and
the Defendants in this case discussed or any documents
showing the nature of the investigation with regard to
whether or not he was a Sovereign citizen, whether or not he
was a gang member would be specifically relevant to his suit
and wouldn’t be unduly burdensome because I’m not
requiring it of any other individual, only of the Plaintiff in
this case.
And I’m going to require that you provide any specific
documents where you either assert that the Plaintiff showed
that he was a member of these groups or caused the
investigation, and any investigation reports or results with
regard to seeing whether or not […] the Plaintiff in this case
was actually a gang member or member of Sovereign
Citizens, that would fit within his allegations in his suit, and,
therefore, it is relevant to it, and I find it’s not overly
burdensome; and unless you can exert some sort of specific
privilege why it should not be provided, I don’t think it fits
any of the ones that I can think of, so –
…
MS. DUCKWORTH: --can I clarify what you’re – what you’re asking because he
had some material in his things that he was copying or
something in the law library. It was identified as –by the law
librarian in good faith as a potential threat and sent away to
the F.B.I. and the investigators. They concluded that he was
not a risk, so I’m struggling to find –
…
But I’m – I mean, I’ve given what – what I have. This is not
typically something we would turn over when the inmate
was exonerated from whatever the rules of infraction was.
…
THE COURT: Ms. Duckworth, that would be particularly relevant to the
fact that he was, in fact, found not to be responsible for this
particular –
…
MS. DUCKWORTH: [That’s] all – in discovery that’s all been released to them.
THE COURT: I’m also fairly familiar with the F.B.I.’s process and
documents are required in filing something to get the F.B.I.
to examine whether or not he fit that criteria. Have those
documents be[en] turned over to the Plaintiff in the case?
MR. McKINNEY: No, Your Honor. They have not, Your Honor.
THE COURT: I’m going to require that those documents, that you initiated
– that the librarian initiate the investigation of whether or not
these were Sovereign Citizen documents or if – and/or
whether he was a gang member that – those materials be
turned over, so I don’t find that it’s unduly burdensome; and
I – I think it’s probative to his claim – to his colorable claim
in this matter, so those will be turned over.
(Doc. #120, PageID #s 2246-50).
Based on the foregoing, it is clear that Ms. Duckworth’s understanding of the
investigation(s) surrounding Plaintiff’s security threat group status was very different from what
the evidence now purports to show. While Ms. Duckworth’s understanding may have been
“mistaken,” Defendants’ current legal counsel has not sufficiently demonstrated to the Court the
steps they took to ensure that their former colleague was mistaken and that there were no external
investigations of Plaintiff and the March 18, 2019 incident.
Accordingly, Defendants’ legal counsel are hereby ORDERED to file an affidavit no later
than March 24, 2023, outlining (1) the steps they took to confirm that the FBI or any entity outside
of ODRC was not involved in the investigation of Plaintiff’s security threat group status; (2) the
circumstances, if any, under which the FBI or any entity outside of ODRC would become involved
with a security threat group analysis; (3) the efforts that they and Ms. Duckworth undertook to
ensure that this case was properly transitioned from Ms. Duckworth before Ms. Duckworth
withdrew as counsel in September 2022; and (4) any attempts, including the use of non-party
subpoenas, to contact Ms. Duckworth and to resolve any factual misrepresentations that have been
made by the Ohio Attorney General’s Office to this Court.
B. Plaintiff’s Motion to Strike
On October 11, 2022, Plaintiff filed a Motion to Strike, requesting that the Court strike
Defendants’ summary of the November 12, 2021 discovery conference as well as the documents
that were produced as part of their memorandum in opposition to Plaintiff’s motions to compel.
(Doc. #117).
According to Plaintiff, the summary provided by Defendants is “not accurate enough to
reflect what was stated in the discovery conference” and should not be relied upon to determine
what was ordered. Id. at 2182-83. Plaintiff also alleges that he was “compelled to file both of his
discovery disc[s] with the court[]” and so he is unable to specifically identify the inaccuracies in
Defendants’ summary. Id.
Plaintiff also objects to the documents produced by Defendants in response to his motions
to compel, arguing that the discovery is late and that “Defendants may not add this evidence
because discovery for [D]efendants [is] over.” (Doc. #117, PageID #2186). Plaintiff contends that
these documents were not previously produced, and that Defendants are trying to add additional
documents to the record that Plaintiff did not request. Id. at 2186-87. Plaintiff also specifically
objects to the documents identified as being the “Documents Confiscated from McKinney,” (Doc.
#107-1, PageID #s 1633-71), stating that “these documents must be stricken from the record, as
these are not the documents taken by [Defendant] Frye. [Plaintiff] never posse[sse]d these
documents[.]” Id. at 2185.
“The Federal Rules of Civil Procedure do not provide for a motion to strike documents
other than pleadings.” Cincinnati Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 377 F.
Supp. 3d 859, 864 (S.D. Ohio 2019); see also Fed. R. Civ. P. 12(f) (limited to striking pleadings
or portions of pleadings). However, the Court has the inherent authority to control its docket,
which includes the authority to strike documents or portions of documents. See id. (citing Anthony
v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003); Getachew v. Cent. Ohio Transit
Auth., No. 2:11-cv-860, 2013 WL 819733, at *2 (S.D. Ohio Mar. 5, 2013)).
Under these circumstances, the Court need not exercise such authority. With regard to
Plaintiff’s request that Defendants’ summary of the November 12, 2021 discovery conference be
stricken, the undersigned finds such a remedy to be unnecessary. As set forth above, the Court has
relied solely on its own discovery orders and the official transcript of the discovery conference in
determining what was previously ordered at the November 12, 2021 discovery conference. In
other words, the Court did not rely on the Defendants’ summary of the proceeding and, therefore,
finds no reason to strike it from the record.
Similarly, there is no reasonable basis for striking the documents that Defendants produced
in response to Plaintiff’s motions to compel. In fact, it was the production of these documents that
allowed the Court to review what had been produced to Plaintiff and to assess what outstanding
discovery Plaintiff is entitled. Simply put, Plaintiff cannot, on one hand, request that the Court
compel outstanding documents from Defendants and, on the other, request that the Court strike the
very documents Defendant used to demonstrate compliance with Plaintiff’s former requests. While
Plaintiff is entitled to disagree with the content or the meaning of the documents produced by
Defendants, he is not entitled to have the documents stricken from the record.
For these reasons, Plaintiff’s Motion to Strike (Doc. #117) is DENIED.
C. Motions for Protective Orders
On November 23, 2022, Plaintiff filed a document entitled “Interrogatories for William
Cool,” in which Plaintiff references motions to compel discovery and protective orders. (Doc.
#122). He then proceeds to state that “Mr. Cool failed to properly respond” to certain “request[s]
for admissions” and follows the statement with a new question directed at Mr. Cool. Id. at 2323-
27. Attached to this document are “Interrogatories” for Defendants Frye, Kammer, Paddock, and
Preston, which follow the same format as the “Interrogatories for William Cool.” Id. at 2329-53.
In response, Defendants, as well as the State of Ohio as an interested party on behalf of
William Cool, filed motions for protective orders, requesting that they be protected from
responding to these interrogatories. (Doc. #s 124-128). In their motions, the State of Ohio and
Defendants point out that they have already responded to Plaintiff’s interrogatories, albeit
identified by Plaintiff as “Requests for Admissions,”3 and that the current sets of interrogatories
filed with the Court are not only improper, but also requested merely for the purpose of harassing
or embarrassing Defendants and Mr. Cool. Id.
3 See fn. 2.
This Court has broad discretion over the discovery process, including the scope of
discovery. Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018); Lewis v. ACB
Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). Unless otherwise ordered, the scope of
discovery is that “[p]arties 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.” Fed. R. Civ. P.
26(b)(1). In this regard, “[r]elevance is construed very broadly for discovery purposes.” Doe v.
Ohio State Univ., 2018 WL 1373868 at *2 (S.D. Ohio Mar. 19, 2018) (citations omitted). The
concept of relevance, however, is not unlimited. Averett v. Honda of Am. Mfg., Inc., 2009 WL
799638 at *2 (S.D. Ohio March 24, 2009). While a plaintiff should “not be denied access to
information necessary to establish her claim,” a plaintiff may not be “permitted to ‘go fishing’ and
a trial court retains discretion to determine that a discovery request is too broad and oppressive.”
In re Ohio Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016) (quoting Surles v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)).
As a result, the Federal Rules of Civil Procedure provides the Court with the ability to issue
protective orders as a means of limiting the scope of discovery. Specifically, the Rules provide
that, “for good cause shown,” the Court can issue a protective order to protect a party or person
“from annoyance, embarrassment, oppression, or undue burden or expense.” Here, “[g]ood cause
exists if ‘specific prejudice or harm will result’ from the absence of a protective order.” In re Ohio
Execution Protocol Litig., 845 F.3d at 236 (internal citation omitted). “The burden of establishing
good cause for a protective order rests with the movant.” Nix v. Sword, 11 Fed. App’x 498, 500
(6th Cir. 2001) (citation omitted).
As an initial matter, the undersigned notes that Plaintiff’s filing of these interrogatories is
in direct contravention of the instruction given to him at the November 12, 2021 discovery
conference, where he was informed that the extension of time for discovery was for responding to
discovery and that he would not be permitted to propound new requests. (Doc. #120, PageID
#2298). Additionally, as previously discussed, while it is unclear whether Defendants timely
responded to Plaintiff’s admissions/interrogatories, it is clear that Mr. Cool and Defendants
provided their responses at least as of September 2022, when they were filed with the Court. (See
Doc. #107-1, PageID #s 2084-2132).4
Further, in comparing Plaintiff’s previously filed requests for admissions with the newly
filed interrogatories, it appears that the interrogatories are either identical or substantially similar
to the requests already filed, thus improperly seeking evidence that has already been produced by
Mr. Cool and Defendants. (Compare Doc. #s 74-76, 78, 79 with Doc. #122, PageID #s 2322-63).
For example, in his January 2022 requests for admissions against Defendant Frye, Plaintiff’s third
request provided: “Mr. Frye when McKinney was delivered to you by the escort, did you label the
Documents In your Contra Band Slip (Sovereign Citizen Document) based on Ms. Paddocks
findings[?]” (Doc. #74, PageID #1175) (errors in original). This request is nearly identical to the
first interrogatory posed by Plaintiff in his November 2022 filing: “Mr. Frye when McKinney was
delivered to you by the escort, did you label the documents in your contraband slip as (sovereign
Citizen Documents) based on Paddocks findings[?]” (Doc. #122-1, PageID #2331) (errors in
original). Again, as discussed above in relation to Plaintiff’s motions to compel, the undersigned
has found that Defendants’ September 2022 responses to these requests are sufficient.
Accordingly, the Court will not entertain Plaintiff’s attempts to obtain further duplicative
responses.
4 The Court recognizes that Defendants have not produced the responses to Plaintiff’s requests against Defendant
Robinson (Doc. #77). Defendant Robinson’s obligation to respond to Plaintiff’s requests (Doc. #77) remains
unaffected by the Court’s findings related to the other Defendants’ motions for protective orders (Doc. #s 124-128).
Finally, to the extent that Plaintiff has varied his interrogatories from his previously filed
requests for admissions, these changes are plainly inappropriate and outside the scope of relevant
discovery. For instance, Plaintiff’s third interrogatory to Defendant Frye states: “Mr Frye have
you ever been disciplined for inappropriate behavior, rape, sexual harasment against Denise
Paddock or other wemon employees or men before 3/18/19 or after[?]” (Doc. #122-1, PageID
#2332) (errors in original). Plaintiff posed a similar iteration of this question to Defendant
Kammer. (Doc. #122-2, PageID #2338). These interrogatories have no relevance to Plaintiff’s
claims and serve no purpose other than to harass Defendants.
In sum, having reviewed all the interrogatories at issue, the Court finds that Plaintiff’s
requests are duplicative, outside the scope of discovery, and/or intended to harass or embarrass
Defendants and Mr. Cool. Federal Rule of Civil Procedure 26(c)(1) was designed for situations
just as this, where the Court must step in to protect a party from “annoyance, embarrassment,
oppression, or undue burden or expense.” Accordingly, the motions for protective orders (Doc. #s
124-128) filed by the State of Ohio and Defendants are hereby GRANTED.
III. CONCLUSION
For the foregoing reasons, Defendants must provide Plaintiff with the discovery outlined
above no later than March 24, 2023. Further, with regard to Ms. Duckworth’s prior statements
regarding an external investigation of Plaintiff’s security threat group status, Defendants’ legal
counsel must file an affidavit no later than March 24, 2023, outlining (1) the steps they took to
confirm that the FBI or any entity outside of ODRC was not involved in the investigation of
Plaintiff’s security threat group status; (2) the circumstances, if any, under which the FBI or any
entity outside of ODRC would become involved with a security threat group analysis; (3) the
efforts that they and Ms. Duckworth undertook to ensure that this case was properly transitioned
from Ms. Duckworth before Ms. Duckworth withdrew as counsel in September 2022; and (4) any
attempts, including the use of non-party subpoenas, to contact Ms. Duckworth and to resolve any
factual misrepresentations that have been made by the Ohio Attorney General’s Office to this
Court.
Upon his review of this compelled discovery and affidavit, Plaintiff will have until April
14, 2023 to file a memorandum indicating whether he believes Defendants have complied with
this Order. If Plaintiff believes that Defendants have not complied with this Order, Plaintiff’s
memorandum must specifically identify (1) the provision(s) in this Order Plaintiff contends
Defendants have not complied with and (2) how Defendants have failed to comply with the
identified provision(s). Defendants will then have 14 days from Plaintiff’s filing to respond to
the alleged deficiencies. Absent a separate Court order, further briefing on these discovery issues
will not be permitted. Once the undersigned is satisfied that discovery is complete, a new and final
deadline for dispositive motions will be set.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff’s “Motion for An Order Compelling Disclosure or Discovery
Federal. Rule. Civil Procedure. (a)(3)(B)” (Doc. #95) is GRANTED in
part and DENIED in part;
2. Plaintiff’s “Motion to Amend and Supplement and Order Compelling
Disclosure or Discovery Federal. Rule. Civil Procedure. (a)(3)(B)”
(Doc. #97) is GRANTED in part and DENIED in part;
3. Plaintiff’s “Motion for an Order Compelling Disclosure, Discovery Fed
R. 34, 36, & 37 Due to Defendants Failure to Properly Respond to
Admissions and the Late Turning Over of Admissions [Plaintiff]
Request Leave to Issue [Interrogatories]” (Doc. #116) is GRANTED in
part and DENIED in part;
4. Plaintiff’s “Motion to Strike” (Doc. #117) is DENIED;
5. State of Ohio, Interested Party’s “Motion for a Protective order; in the
alternative Motion to Quash Interrogatories Served Upon William Cool,
Non Party [Doc. 122]” (Doc. #124) is GRANTED;
6. Defendant Shawn Frye’s Motion for a Protective Order (Doc. #125) is
GRANTED;
7. Defendant Ryan Kammer’s Motion for a Protective Order (Doc. #126)
is GRANTED;
8. Defendant Denise Paddock’s Motion for a Protective Order (Doc. #127)
is GRANTED; and
9. Defendant Brian Preston’s Motion for a Protective Order (Doc. #128) is
GRANTED.
February 24, 2023 s/Peter B. Silvain, Jr.
Peter B. Silvain, Jr.
United States Magistrate Judge