Statement of the Facts

Over nine months ago, Plaintiffs served their Second Post-Decision Set of Interrogatories and Second Post-Decision Request for Production of Documents upon Defendants. However, Defendants objected to all of these legitimate discovery requests. After informal attempts by Plaintiffs’ counsel to obtain the requested discovery failed, Plaintiffs were left with no recourse other than to file their Motion to Compel. That Motion was filed on November 24, 1997.

By Entry of December 16, 1997 (attached as Exhibit A), this Court granted Plaintiffs’ Motion to Compel, and issued its order:

The Defendants shall respond to Plaintiffs’ requests on or before January 5, 1998. Pursuant to the Civil Rules, the Defendants shall update their Responses as additional information becomes available to them.

On or about January 5, 1998, Plaintiffs received from defense counsel Defendant State of Ohio’s Supplemental Answers to Plaintiffs’ Second Post-Decision Set [of] (sic) Interrogatories and Response to Requests for Production (attached as Exhibit B). Continuing their past practice, Defendants once again objected to all of the discovery requests. Of relevance to the instant Motion are the following Interrogatories and accompanying Requests for Production:

6. Identify each item of legislation passed by the Ohio General Assembly between December 8, 1993 and March 24, 1997 which you believe in any way improves the funding or operation of public elementary and secondary schools in the State of Ohio.

7. Identify each item of legislation passed by the Ohio General Assembly on or after March 24, 1997, which you believe in any way improves the funding or operation of public elementary and secondary schools in the State of Ohio.

8. For each item of legislation identified in Interrogatories #7 and #8, identify each study, analysis, report or other document which you believe support your contention that the legislation improved the funding or operation of public elementary and secondary schools in the State of Ohio.

9. With respect to each study, analysis, report or other document identified in your previous answer, identity each person who conducted, authored, prepared or otherwise participated or took part in each such study.

The only Interrogatories to which Defendants responded were Interrogatories 6 and 7. In those answers, where Defendants listed certain legislative enactments, Defendants wrote: "The General Assembly has not yet completed the task of enacting a final remedy in response to the DeRolph decision." Defendants then listed certain legislation, "[w]ithout waiving the foregoing objections and subject to any change made by the General Assembly in the future …." In response to questions 8 and 9, Defendants asserted that they were unaware of any studies supporting their contention that the enacted legislation improved funding or the operation of public schools.

After receiving these incomplete responses to discovery, counsel for Plaintiffs wrote to Roger Carroll, attorney for the Defendants, on January 22, 1998 (letter attached as Exhibit C). In that letter, Plaintiffs’ counsel pointed out that, with reference to interrogatories 8 and 9, Defendants’ responses were unclear as to whether Defendants were asserting that no such studies exist, or that such information may exist but is unknown by the General Assembly, who enacted the legislative items, or any of the Defendants. Plaintiffs’ counsel then asked that proper responses be made to the discovery.

Two weeks later, on February 11, 1998, Defendants’ attorney wrote to Mr. Pittner (letter attached as Exhibit D). In that letter, Mr. Carroll asserted that the State of Ohio, Department of Education, the State Board of Education and Superintendent of Public Instruction are the defendants in the lawsuit. Continuing, defense counsel wrote: "The General Assembly is not a defendant in this action." Mr. Carroll then stated that the named Defendants had not conducted any such studies, and since the General Assembly is not a "party" to the action, Defendants would not respond for the General Assembly.

Once again, on February 20, 1998, Plaintiffs’ counsel wrote to Mr. Carroll (Exhibit E, attached). In that letter, responding to Defendants’ assertions that they were not required to produce information and documents known and held by the General Assembly, Plaintiffs’ counsel noted:

• The General Assembly is an agency of the State of Ohio, a named defendant in this litigation.

• The Ohio Supreme Court in DeRolph v. State (1997), 78 Ohio St.3d, 193, "admonish[ed] the General Assembly that it must create an entirely new school financing system." Emphasis added.

• In their Motion for Extension of the March 24, 1998 Deadline and for Expedited Supreme Court Review of DeRolph-Related Election Disputes (hereinafter referred to as "Motion for Extension"), Defendants relied extensively on various actions of the General Assembly, and therefore could not take the position that discovery pertaining to that agency of the State of Ohio was off-limits.

In addition, counsel for the Plaintiffs in his February 20 letter informed defense counsel that supplementation of Defendants’ responses to Interrogatories 6 and 7 was required, since in their Motion for Extension Defendants had represented to this Court that "the Ohio General Assembly enacted, and the Governor signed into law, the final piece of legislation attempting to respond to the [Supreme] Court’s decision." Based upon this representation that the Defendants’ work was now complete, and the remedy has been enacted, Plaintiffs’ counsel asked that Defendants respond to Plaintiffs’ Interrogatories and Requests for Production, by March 2, 1998. Defendants have failed and refused to respond.

Argument

Defendants are in violation of this Court’s December 16, 1997 order. This Court unequivocally ordered that "Defendants shall respond to Plaintiffs’ requests on or before January 5, 1998." Further, Defendants were ordered to "update their responses as additional information becomes available to them." Defendants have failed to obey this Court’s order in several respects. First, under the guise of arguing that "the General Assembly is not a party to this case," Defendants refuse to provide any of the requested information and documents that would be in response to Plaintiffs’ discovery requests. However, as noted in the February 20, 1998 letter from Plaintiffs’ counsel (Exhibit E):

• The General Assembly is an agency of the State of Ohio, a party Defendant; and

• The mandate from the Supreme Court of Ohio was very clear: "[W]e admonish the General Assembly that it must create an entirely new school financing system." DeRolph, 78 Ohio St.3d at 213.

To assert, as Defendants do, that they are not required to respond to Plaintiffs’ discovery because the General Assembly has not been specifically named as a party is, at best, disingenuous and, at worst, in blatant disregard and violation of this Court’s order.

Secondly, Defendants also have asserted in their incomplete responses to Plaintiffs’ discovery requests that "the General Assembly has not yet completed the task of a final remedy in response to the DeRolph decision." While those statements, in response to Interrogatories 6 and 7, may have been true as of January 8, 1997 when Defendants supplemented their answers, in their Motion for Extension, filed February 18, 1998, Defendants represent to this Court:

Most recently, the Ohio General Assembly enacted, and the Governor signed into law, the final piece of legislation attempting to respond to the [Supreme] Court’s decision. With passage just yesterday of Am. Sub. H.B. 697 … coupled with passage just last week of H.B. 650 … our policy leaders have put together the last piece of this remedial puzzle.

Motion for Extension at 1. Continuing, Defendants note that, aside from H.B. 697, "[a]ll other components of the legislative remedy have already been put in place." Motion for Extension at 3.

Therefore, according to Defendants the "remedy" is in place. Thus said, Defendants are, and have been since February 17, 1998, in position to supplement their responses to Plaintiffs’ discovery requests without the necessity of Plaintiffs filing the instant motion. However, once again Plaintiffs are forced to petition this Court, due to the blatant refusal of Defendants to abide by the order of this Court. As such, this contemptuous conduct must not go unrecognized. Accordingly, pursuant to Civil Rule 37(b)(2), Plaintiffs request that the Court hold Defendants in contempt for failing and refusing to obey this Court’s Entry and order of December 16, 1998, and that Defendants be ordered to immediately answer Plaintiffs’ Second Post-Decision Set of Interrogatories and respond to Plaintiffs’ Second Post-Decision Request for Production of Documents. 

CERTIFICATE OF SERVICE