Panel Finds Discovery Dispute Moot in Gerrymandering Case

CINCINNATI (CN) – Republican Party officials cannot compel the identification of people who accessed sensitive documents during last year’s Ohio gerrymandering trial, the Sixth Circuit ruled Wednesday.

A unanimous three-judge panel determined in a terse, unsigned opinion that the Republican National Committee and officer Adam Kincaid’s arguments asserting First Amendment privilege regarding documents obtained during discovery proceedings were mooted when the case was dismissed.

David Niven, a professor of political science at the University of Cincinnati, holds a map displaying Ohio congressional districts in April 2019. (AP Photo/John Minchillo)

The three judges overseeing the trial had originally ruled that Ohio’s election map is an unconstitutional gerrymander, but that decision was vacated when the U.S. Supreme Court issued its decision last year in Rucho v. Common Cause.

The Ohio A. Philip Randolph Institute was successful during the trial in obtaining access to emails and other documents from Republican officials that detailed the party’s efforts to rework Ohio’s election map.

Most of the documents were used in the trial, and thus became available to the public at large, a consequence the Cincinnati-based Sixth Circuit said it could not reverse.

“There’s not much a court can do about preserving the confidentiality of information ‘widely available to the public,’” the four-page opinion states. “Here, the Randolph Institute used 61 of these documents as exhibits at the (fully public) trial, which required filing a complete set of paper copies with the district court.” (Parentheses in original.)

The ruling continues, “The third parties concede that these documents are now accessible to the public. And they concede that a complete transcript of Adam Kincaid’s deposition is publicly accessible on the district court’s online docket. With respect to these public documents, this appeal is moot.”

Documents not used during the trial were ordered to be destroyed by the lower court, which mooted another portion of the Republicans’ arguments, according to the Sixth Circuit panel.

“The Randolph Institute,” the panel said, “says it has ‘securely destroyed’ ‘any and all documents’ containing the third parties’ confidential information. And the third parties do not dispute the truthfulness or completeness of that statement.”

During oral arguments last week, the RNC also asked the Randolph Institute to identify anyone who may have had access to the confidential documents to prevent their use in future gerrymandering litigation.

The panel also refused to grant relief on this claim, finding “there is nothing we can do to redress any injury caused by the spread of knowledge itself; those bells cannot be un-rung.”

“As for the use of that knowledge,” the ruling continued, “concerns about what might happen in a yet-to-be-filed future lawsuit are typically not enough to keep a present dispute alive. This is particularly true here, where the third parties could easily identify illicit use and get a remedy from the court.”

The judges concluded that the lower court’s protective order “bars all who received these documents from using them for any purpose other than ‘preparing for or conducting this litigation,’ and it remains fully binding and enforceable into the future.”

The panel consisted of Senior U.S. Circuit Judge Ralph Guy Jr., an appointee of Ronald Reagan, and U.S. Circuit Judges Jeffrey Sutton and Richard Griffin, both appointees of George W. Bush.

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