IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO
STATE EX REL. MARK MILLER, : CASE NO. C1800224
:
RELATOR, :
:
-v- :
: RESPONDENTS’ REPLY IN SUPPORT
COUNCILMEMBER SITTENFELD, : OF ITS MOTION TO
ET AL., : SUBMIT DOCUMENTS FOR AN
: IN CAMERA INSPECTION, MOTION
RESPONDENTS. : FOR A PROTECTIVE ORDER, AND
: MOTION TO MODIFY THE
SCHEDULING ORDER.

Although the parties to this lawsuit disagree about the ultimate issue in this case—

whether certain text messages sent between Councilmembers on their private cell phones

are public record—a close review of the Respondents’ Motion and the Relator’s Response

demonstrates that there are many areas of agreement.

The parties agree that there is not binding Ohio Supreme Court caselaw on this

issue. The parties agree that an in camera review of the texts may be necessary. The

parties even agree that the Respondents should not be required to disclose the contested

documents to Relator as part of the discovery in this case.

What remains is for this Court to decide the limits to the discovery that will permit

the parties to argue their positions without mooting the case. Relator does not dispute

that production of the text messages will moot this case as the Lanham court explained.

State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶

23. But what they do not address is that in State ex rel. Mark Miller v. Sittenfeld et al.,

Hamilton County Common Pleas Case Number A1801834, Relator, the same Relator as

this in this case, has requested production of the very text messages at issue in this case

from the very same Respondents as in this case. Relator should not be permitted to receive

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the text messages until this Court has the opportunity to review them and make its

determination about whether they are public record—especially as Relator tacitly admits

that it is not entitled to their production in this case. All Respondents are requesting is

time to present its defenses to this Court and receive a determination of their obligations

under the law.

Relator distracts from the core of the Respondents’ request by arguing that the

motion is premature and that Respondents have admitted that there are additional

records about the public business. First, the motion is not premature given the fact that

Relator has requested production of the text messages in the Common Pleas case. Second,

the Requests for Admission attached to Relator’s Response are not limited to

communications about the public business, but rather any communication between

Councilmembers and so do not establish that there are additional responsive records.

Regardless, Respondents simply want a chance to argue the merits of this case

without having the discovery process moot the ultimate issues. To that end, Respondents

join in Relator’s request to modify the scheduling order to (1) set a deadline for joint

stipulations, (2) permit limited discovery that does not disclose the content of the text

messages, specifically Respondents to refuse to answer deposition questions about their

exact content, (3) prohibit the Respondents from disclosing the text messages from March

1, 2018 through March 19, 2018 until the Court has an opportunity to review them in

camera, (4) set a deadline for submission of the text messages to the Court in camera,

and (5) set a briefing schedule for the merits of the case.

Respectfully Submitted,

Paula Boggs Muething (0080018)

City Solicitor

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 /s/ Emily E. Woerner
Terrance A. Nestor (0065840)
Deputy City Solicitor
Emily E. Woerner (0089349)
Assistant City Solicitor
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
Phone: (513) 352-3307
Fax: (513) 352-1515
terry.nestor@cincinnati-oh.gov
emily.woerner@cincinnati-oh.gov
Counsel for Respondents

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Reply was filed and sent via electronic

mail to the following on this 19th day of July, 2018:

Brian Shrive (0088980)

Christopher Finney (0038998)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
brian@finneylawfirm.com
chris@finneylawfirm.com
Attorneys for Relator Mark Miller

s/Emily E. Woerner
Emily E. Woerner (089349)

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