IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO THOMAS E. BRINKMAN, JR., et al. Plaintiffs, v.

BOARD OF EDUCATION OF THE CITY OF CINCINNATI PUBLIC SCHOOL DISTRICT, et al. Defendants. : : : : : : : : : : : : Case No. A1208536 Judge Steven E. Martin PLAINTIFF BRINKMANS COMBINED MOTION TO COMPEL PRODUCTION PURSUANT TO PREVIOUSLY ISSUED SUBPOENAS FROM (i) CINCINNATIANS ACTIVE TO SUPPORT EDUCATION; (ii) CINCINNATI FEDERATION OF TEACHERS; and (iii) JENS SUTMOLLER

Pursuant to Rule 45 of the Ohio Rules of Civil Procedure, Plaintiff Thomas E. Brinkman, Jr., by and through undersigned counsel, hereby moves for this Court to compel production from (i) Cincinnatians Active to Support Education (CASE); (ii) Cincinnati Federation of Teachers (CFT); and (iii) Jens Sutmoller, pursuant to subpoenas duces tecum previously issued to and served upon each of the foregoing individuals or organizations. Though involving three separate subpoenas, Plaintiff Brinkman presents this motion to the Court as a combined motion as the facts and legal issues associated with each subpoena overlap and, thus, this combined motion is undertaken in the interest of judicial economy. In support hereof, the following memorandum in support is tendered.

MEMORANDUM IN SUPPORT Plaintiffs and Defendant Cincinnati Public Schools (CPS) are parties to an agreement (the Agreement) dated December 30, 2002, which settled a lawsuit brought in federal court. The Agreement is attached as Exhibit A to the Complaint in this matter and to the Affidavit of Thomas E. Brinkman, Jr. The Agreement was amended in 2010, a copy of which is attached to

the Affidavit of Thomas E. Brinkman, Jr., as Exhibit B.

The pertinent provisions of the

Amended Agreement for purposes of this litigation are the following obligations Section 2 of the Agreement specifically provides that CPS will strictly enforce a policy of preventing Other Political Advertisements on CPS Property. In turn, Section 1(c) of the Agreement defines Other Political Advertisements as including printed or electronic materials or messages advocating in upcoming elections the passage or defeat of ballot issues, including without limitationseeking funds, volunteers or other resources to advance any such issue. Section 3 of the Agreement, as amended, specifically provides that CPS will strictly enforce a policy of preventing CPS Property and/or CPS personnel from being used by CPS for . . . organizational meetings, forums, and the promulgation and distribution of printed and electronic messages advocating the passage or defeat of all ballot issues . . . . CPS will use reasonable efforts to prevent such communications using CPS Property or CPS Personnel.

A.

Background and introduction.

Prior to filing the Complaint in this matter, Plaintiff Thomas E. Brinkman, Jr., requested and obtained certain public records from CPS that revealed certain political activities were being conducted on CPS Property, as well as involving the use of CPS Equipment and CPS Personnel.1 Such political activity appeared to be focused upon, though was not necessarily limited to, assisting the campaign that advocated a yes vote for a school levy that was appearing on the ballot in the most recently held election. For the limited records which Mr. Brinkman had received revealed what could best be described as a conspiracy between CPS, the CFT,2 and

CPS Property refers to the real property and improvements, e.g., buildings, parking lots, etc., owned by or leased to CPS; CPS Equipment means computers, copiers, bulletin boards, and other personal property owned or controlled by CPS; and CPS Personnel means employees or agents of CPS on time while being paid by CPS to perform official CPS duties.
2

CFT is the collective bargaining unit representing the teachers within CPS. -2-

CASE3 wherein campaign volunteers were recruited by CPS Personnel within CPS Property using CPS Equipment. By allowing and condoning such activity to occur, CPS was clearly in violation of the Agreement, resulting in the commencement of the present lawsuit.

B.

Discovery sought.

As part of the discovery efforts in this case, Mr. Brinkman, through his counsel, caused to be issued and served various subpoenas in order to obtain records from various individuals or organizations, including CASE, CFT and Jens Sutmoller (who was an employee of or contractor for CASE, charged with managing the pro-levy campaign). These subpoenas are attached to their respective Returns of Service which have been filed with the Court in this case. Generally speaking, these subpoenas sought to obtain a full and complete production of records relating to the use of CPS Property, CPS Equipment and/or CPS Personnel relative to the campaign in support of the school levy. However, to date, all that has been produced pursuant to the three subpoenas has been but a single document, viz., an official campaign calendar for the efforts by CASE in support of the school levy campaign. That calendar is attached to the Affidavit of Thomas E. Brinkman, Jr. as Exhibit C thereto. 1. Subpoena Directed to CASE The various documents sought via the subpoena served upon CASE, yet which CASE has refused to produce, can be summarized as follows: copies of communications to and from CASE (i) with CPS employees at their official CPS e-mail accounts (Requests 1-14), (ii) with CPS employees at their personal e-mail accounts (Requests 16 and 18-19), (iii) with CFT employees (Request 17). CASE is a political action committee whose mission, generally, is to pass school levies and bond issues and, specifically in 2012, to pass an 8.55-mill, 5-year operating levy for CPS that would generate approximately $51.1 million per year in revenue (the School Levy). -33

further detail of the campaign calendar provided by CASE, to include the field of location (if available) for each entry (Requests 20 and 21). copies of all pro-levy materials distributed on CPS Property (Request 23). all communications relating to any day of action relating to any of CPS schools (Request 26).4 documents referencing or relating to Tom Frank (Request 27).5

In refusing to comply with the mandate of the subpoena to produce the foregoing documents, CASE, though attorney Don Mooney, tendered objections thereto. This objection letter is attached hereto as Exhibit A-3. The stated objections of CASE are: (i) any e-mails from CASE to the CPS accounts can also be obtained from CPS; (ii) e-mails to CPS employees personnel e-mail accounts are not relevant to this litigation; and (iii) Plaintiff should pay before CASE complies with its moral and legal obligations to comply with a court order, i.e., the subpoena. These objections will be addressed ad seriatim. As for CASEs claim that the same e-mails could also be obtained from CPS, such an objection fails to appreciate that [t]he scope of pretrial discovery is broad. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter. State ex rel. Grandview Hosp. and Medical Center v. Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297

Based upon the public records originally produced by CPS to Mr. Brinkman, it appears that the principle activity of CASE in support of the school levy involved a concerted effort to have the teachers at various schools volunteer for a Day of Action and that such efforts of organizing and arranging such volunteers were undertaken on CPS Property, using CPS Personnel and CPS Equipment. The public records also indicate the intimate involvement of Thomas Frank in coordinating efforts with CASE in support of the school levy. In one of the public records, Mr. Frank was described as a teacher from Carson [Elementary School] [who was] on full time work release on the [pro-levy] campaign, Complaint, Exhibit B, though the full extent of his involvement and relationship with CPS and CASE was not readily apparent from the public records. -45

(1990)(quoting Ohio. R. Civ. P. 26(B)(1)). And such discovery may be obtained from both parties and non-parties. For [p]ursuant to Civ.R.34(C), any party seeking documents from a non-party may compel their production by way of a subpoena in accord with Civ.R. 45. Brustetter v. Keating, 2003-Ohio-3270 31. And the scope of discovery from a non-party is the same as is applicable to parties, i.e., any matter, not privileged, which is relevant to the subject
matter involved in the pending action and that [i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Ohio R. Civ. P. 26(B). Furthermore, the search for the

documents by CASE should be a fairly easy series of computer searches, as the request specifically identifies the domain name to be searched, i.e., cpsboe.k12.oh.us, or specificallynamed individuals, as well as limiting the time period of when such documents were created, i.e., since June 1, 2012. Thus, it is not at all unduly burdensome for CASE to produce such

documents. Thus, the burden, if any, which CASE may claim (but cannot demonstrate) is not significant and the documents sought from CASE are directly relevant to these proceedings. Additionally, reliance solely upon a production of such records from CPS is not as easily accomplished nor is there an absolute assurance of completeness in the scope of the records ultimately produced when reliance is placed solely upon a single responding entity. For when CPS conducts its searches, the persons from CASE with whom CPS personnel might have communicated is not readily identifiable, either by specific name or, more particularly, a domain name (in contrast to the singular domain name for CPS communications, i.e.,

cpsboe.k12.oh.us). Thus, simply because Plaintiff has asked for and may obtain some these same documents from CPS, does not preclude efforts to ensure the completeness of the production of all such communications. Allowing and providing for complete and thorough discovery in this case will ultimately enable a full and proper presentation of evidence to this -5-

Court so that the case may be decided upon the merits. See Baker v. Oregon City Schools, 2012Ohio-972 13 (it is appellants duty as the plaintiffs to utilize the rules of discovery to ferret out the truth); In re Jeter Children, 2001-Ohio-4362, 118 Ohio Misc.2d 101, 769 N.E.2d 911 (Common Pleas 2001)([t]he Supreme Court of Ohio has endorsed the Hickman discovery philosophy, declaring that even discovery fishing expeditions are not per se objectionable because discovery often reveals the truth of the situation, which is, and must remain, the ultimate goal in determining the rights of parties in litigation (quoting Ex Parte Oliver, 173 Ohio St. 125, 130, 180 N.E.2d 599 (1962)). The second objection posited by CASE, i.e., the requested records are not relevant to this case, similarly lacks any basis. For as noted above, the broad scope of discovery covers not only relevant information but also any information reasonably calculated to lead to the discovery of admissible evidence. See Ohio R. Civ P. 26(B). And in this case, one of the critical and pivotal issue concerns the collective or coordinated actions of CASE, CPS and CFT in support of the school levy and to do so through the use of CPS Property, CPS Equipment and CPS Personnel. Unfortunately, it appears that CASE and CPS Personnel attempted to engage in or did engage in what has become a recent modus operandi of public officials of avoiding both public records requests and the subpoena powers of the courts and Congress through the use of either personal e-mail accounts or fictitious e-mail accounts to avoid scrutiny of their actions on public time relative to public business. See, e.g., EPA to probe Lisa Jacksons alias email account, Politico, Dec. 18, 2012 (discussing EPA administrators use of a fake email account under the name of Richard Windsor).6 For in this case, Jens Sutmoller, the CASE campaign manager for school levy, seemed attuned to this procedure precisely in order to avoid detection of activities

Available 0248FF9DE2FA

on-line

at

http://dyn.politico.com/printstory.cfm?uuid=6952B5D7-5AB4-45A0-8FFB-

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violative of the Agreement by attempting to communicate with CPS Personnel during school time but via private e-mail accounts. Consider, e.g., the following e-mail exchange of September 5, 2012, to and from an official CPS e-mail address: [From Brent Cassidy to Jens Sutmoller, using CPS e-mail address sent at 9:14 in the morning] Good morning Jen: My name is Brent Cassidy. I am the Building Rep. for Roll Hill School. Ms. Hill asked me to assist her with securing volunteers for our Levy Day sign up. I have a few questions. 1. What are the dates we would be signing up for in September/October?

2. Is there an electronic form of the signup form that I should e-mail back to you, or are you just looking for a list of names? Last year, I found our group to be very willing to engage in this process. I think if we know a specific date, that will address the first question that most of our staff will have. I am having people sign up generally in the meantime. Please advise. Regards Brent Cassidy Roll Hill 5th/6th Math [From Jens Sutmoller to Brent Cassidys CPS e-mail address] Do you have a personal e-mail I can correspond with you? Repeatedly, courts in Ohio and throughout the nation have rejected this ruse to avoid production of e-mails, under public records laws or under subpoena powers. For example, under the Ohio Public Records Act (R.C. 149.43), courts have held private emails sent over a public office computer become public records when they are utilized to make decisions in the public office. State ex rel. Bowman v. Jackson City Sch. Dist., 2011-Ohio-2228 12-14 (2011); State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept, 82 Ohio St.3d 37, 42 n.1, 693 N.E.2d 789 -7-

(1998)(an e-mail message from a public offices e-mail system can be a public record if it documents the organization, functions, policies, decisions, procedures, operations, or other activities of the public office).7 And in the context of discovery, personal emails that may lead to relevant evidence have repeatedly been found to be discoverable. See Marlow v. Chesterfield County Sch. Bd., 2010 U.S. Dist. LEXIS 96322, 8-9 (E.D. Va. Sept. 15, 2010) citing Buckley v. Mukasey, 538 F.3d 306, 319 (4th Cir. 2008) (At least some of the emails may lead to evidence regarding the disparate treatment of Marlow or other employees on the basis of age during the relevant period. In addition, some of the emails may, at least, constitute relevant "background evidence" any of the employer's biases, prejudices, and attitudes as may exist). And as discovery requests afford broad access to document than public record request, State ex rel. Hastings Mut. Ins. Co. v. Merillat, 50 Ohio St. 3d 152 (1990) (a Crim. R. 16 discovery request would provide broader access to relevant documents than a writ of mandamus brought pursuant to R.C. 149.43. Similarly, a subpoena duces tecum issued pursuant to Civ. R. 30(B) would appear to afford comparable benefits), the records sought from CASE in this instance are appropriate and within the scope of permissible discovery.

This same method of concealment has been tried to avoid public records laws in other states as well, and has consistently been rejected there, too: Mechling v. City of Monroe, 152 Wn. App. 830, 836 (Wash. Ct. App. 2009) (personal e-mails that relate to city business addresses used by city council members to discuss city business are not exempt from disclosure under the Public Records Act); O'Neill v. City of Shoreline, 145 Wn. App. 913, 923, 187 P.3d 822 (2008), review granted, 165 Wn.2d 1044, 208 P.3d 554 (2009) (An e-mail message is a writing under the PDA). E-mail messages of public officials or employees are subject to a public records request if the e-mails contain information related to the conduct of government. Id. at 843-44. citing Tiberino v. Spokane County, Office of Prosecuting Attorney, 103 Wn. App. 680, 688, 13 P.3d 1104 (2000). In McLeod v. Parnell, 286 P.3d 509 (Alaska 2012), one of the issues addressed by the Court dealt with just such use of private email accounts to conduct state business that were not produced pursuant to that states Public Records Act. There, the State had to gather all obtainable emails from Governor Palins and others private email accounts relating to the transaction of state business and process them to respond to McLeod's request to review any public records among those emails. Id. at 517. -8-

The third objection lodged by CASE concerning the subpoena, i.e., demanding compensation from the Plaintiffs in order to respond to this subpoena, is neither a proper objection nor does it have merit. The scope of the sought after documents is constrained and limited. In specifically identifying the pertinent domain name or individuals, as well as limiting the time period involved, Plaintiff took reasonable steps to avoid imposing undue burden or expense on a CASE. See Ohio R. Civ. P. 45(C)(1). There is no legal basis to afford CASE a status special and unique from other individuals to whom a subpoena may be issued.

2. Subpoena Directed to the CFT The various documents sought via the subpoena served upon the CFT, yet which the CFT has refused to produce, can be summarized as follows: E-mails relating to the School Levy Campaign from June 1, 2012 to present (Requests 2, 4 and 5). To date, the CFT has refused to produce a single responsive record. CFTs communications, especially with CPS personnel on CPS time, as well as detailing its relationship with Tom Frank (the teacher for CPS who apparently was allowed to work full time on the levy campaign) are core to the allegations set forth in the Complaint. Other communications sought may well lead to the discovery of admissible evidence in this case. They should be produced.

3. Subpoena Directed to Jens Sutmoller The various documents sought via the subpoena served upon Jens Sutmoller, yet which Mr. Sutmoller has refused to produce, can be summarized as follows: e-mails (i) to and from CPS Personnel, both to and from their CPS e-mail addresses and their personal e-mail addresses (Requests 1-6), (ii) to and from -9-

employees and agents of the Cincinnati Federation of Teachers (Request 7), (iii) documents relative to the creation of the web site justarenewal.com (Requests 11-12) and (iv) documents (other than the calendar produced) relative to CASEs Days of Action (Request 13).

Mr. Sutmoller asserted a variety of objections to the production of the foregoing documents. These objections were essentially the same objections as that asserted by CASE, see supra, and, as developed supra, such objections are without merit. And he essentially does not even raise an objection concerning the production of documents relative to the Days of Action; instead, he simply has failed to product any of them save the singular calendar attached to Mr. Brinkmans Affidavit as Exhibit C.

C.

Conclusion

This litigation, ultimately, is a fairly simple breach of contract case. As with other such issues before this Court, the challenge will be (i) uncovering the facts surrounding that claimed breach, and then (ii) ascertaining whether those claimed facts ultimately establish a breach of contract under Ohio law. While CPS has raised a variety of legal defenses concerning the enforceability of the Agreement, discovery is proper with respect to all claims and defenses presented. And, in this case, such discovery must include the full scope of conduct of CPS and CPS Personnel in their coordinated effort with CASE in support of the school levy. Accordingly, the Court should issue an order compelling production from (i) CASE; (ii) CFT; and (iii) Jens Sutmoller, pursuant to the subpoenas duces tecum previously issued to and served upon each of them.

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Respectfully submitted, /s/Christopher P. Finney Curt C. Hartman (0064242) The Law Firm of Curt C. Hartman 3749 Fox Point Court Amelia, Ohio 45102 (513) 752-8800 hartmanlawfirm@fuse.net and Christopher P. Finney (0038998) FINNEY, STAGNARO, SABA & PATTERSON CO., L.P.A. 2623 Erie Avenue Cincinnati, Ohio 45208 (513) 533-2980 (513) 533-2990 (Facsimile) cfinney@fssp-law.com Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent via email and/or regular mail this the 4th day of January, 2013 upon the following: Mark J. Stepaniak Taft, Stettinius & Hollister 425 Walnut Street, Suite 1800 Cincinnati, OH 45202 stepaniak@taftlaw.com Donald J. Mooney Ulmer & Berne LLP 600 Vine Street, Suite 2800 Cincinnati, OH 45202 dmooney@ulmer.com

/s/Christopher P. Finney

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