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Motion to Compel CPS 2013.01.04

Motion to Compel CPS 2013.01.04

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Published by: COAST on Jan 13, 2013
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08/11/2013

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IN THE COURT OF COMMON PLEASHAMILTON COUNTY, OHIOTHOMAS E. BRINKMAN, JR.,
et al 
.Plaintiffs,v.BOARD OF EDUCATION OF THECITY OF CINCINNATI PUBLICSCHOOL DISTRICT,
et al.
 Defendants.::::::::::::Case No. A1208536Judge Steven E. MartinPLAINTIFF
BRINKMAN’S
COMBINEDMOTION TO COMPEL PRODUCTIONPURSUANT TO PREVIOUSLY ISSUEDSUBPOENAS FROM (i) CINCINNATIANSACTIVE TO SUPPORT EDUCATION; (ii)CINCINNATI FEDERATION OFTEACHERS; 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 andserved upon each of the foregoing individuals or organizations. Though involving three separatesubpoenas, Plaintiff Brinkman presents this motion to the Court as a combined motion as thefacts and legal issues associated with each subpoena overlap and, thus, this combined motion isundertaken in the interest of judicial economy. In support hereof, the following memorandum insupport 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
 
-2-the Affidavit of Thomas E. Brinkman, Jr., as Exhibit B. The pertinent provisions of theAmended 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 limitation…seeking funds, volunteers or 
 other resourc
es to advance any such … issue
.”
 
Section 3 of the Agreement, as amended, specifically provides that “
CPS will strictlyenforce a policy of preventing CPS Property and/or CPS personnel from being used byCPS 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 CPSProperty or CPS Personnel.
 
A.
 
Background and introduction
.Prior to filing the Complaint in this matter, Plaintiff Thomas E. Brinkman, Jr., requestedand obtained certain public records from CPS that revealed certain political activities were beingconducted 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 theballot in the most recently held election. For the limited records which Mr. Brinkman hadreceived revealed what could best be described as a conspiracy between CPS, the CFT,
2
and
1
 
“CPS Property” refers to the real property and improvements,
e.g.
, buildings, parkinglots,
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.
 
-3-CASE
3
wherein campaign volunteers were recruited by CPS Personnel within CPS Propertyusing CPS Equipment. By allowing and condoning such activity to occur, CPS was clearly inviolation 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 tobe issued and served various subpoenas in order to obtain records from various individuals ororganizations, including CASE, CFT and Jens Sutmoller (who was an employee of or contractorfor CASE, charged with managing the pro-levy campaign). These subpoenas are attached totheir respective Returns of Service which have been filed with the Court in this case. Generallyspeaking, these subpoenas sought to obtain a full and complete production of records relating tothe use of CPS Property, CPS Equipment and/or CPS Personnel relative to the campaign insupport of the school levy. However, to date, all that has been produced pursuant to the threesubpoenas has been but a single document,
viz.
, an official campaign calendar for the efforts byCASE 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 hasrefused to produce, can be summarized as follows:
 copies of communications to and from CASE (i) with CPS employees at theirofficial CPS e-mail accounts (Requests 1-14), (ii) with CPS employees at theirpersonal e-mail accounts (Requests 16 and 18-19), (iii) with CFT employees(Request 17)
.
3
CASE is a political action committee whose mission, generally, is to pass school leviesand 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”).
 

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