Gresock v. The Ohio State University

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN DOE 162, et al.,
Plaintiffs,
Case No. 2:23-cv-2991
v. 	Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
THE OHIO STATE UNIVERSITY,
Defendant.
STEVE SNYDER-HILL, et al.,
Plaintiffs,
Case No. 2:23-cv-2993
v. 	Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
THE OHIO STATE UNIVERSITY,
Defendant.
WILLIAM KNIGHT, et al.,
Plaintiffs,
Case No. 2:23-cv-2994
v. 	Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
THE OHIO STATE UNIVERSITY,
Defendant.
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STEVE GRESOCK,
Plaintiff, 	Case No. 2:23-cv-2996
Judge Michael H. Watson
v. 	Magistrate Judge Elizabeth P. Deavers
THE OHIO STATE UNIVERSITY,
Defendant.
______________________________________________________________________________
EDWARD GONZALEZ, et al.,
Plaintiffs,
Case No. 2:23-cv-3051
v. 	Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
THE OHIO STATE UNIVERSITY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel Documents and
Information from Defendant Related to the Perkins Coie Investigation and Report. (ECF No.
135.1 ) Defendant, The Ohio State University (“OSU”), has filed a Response, and Plaintiffs have
filed a Reply. (ECF Nos. 139, 141.) Plaintiffs’ Motion is GRANTED, to the extent set forth
below, with the stated requirement that the parties meet and confer.
I.
1 All docket citations correspond to filings made in Snyder-Hill v. The Ohio State University,
Case No. 2:23-cv-2993.
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The larger background surrounding the investigation of Dr. Richard Strauss which
underlies this current discovery dispute is well known and will not be repeated at any length
here. For purposes of the subject Motion, the following, more limited, background is relevant.
Plaintiffs explain that they have requested certain information and documents from OSU about
the Perkins Coie Report (“Report”) and Investigation:
(1) Ohio State’s role in the investigation, specifically collecting, reviewing, and
providing documents to Perkins Coie (Interrogatories Nos. 18-21, Requests
for Production Nos. 26-29);
(2) Ohio State’s documents and communications (both internally at Ohio State
and with external parties, including Perkins Coie) about and/or underlying the
investigation, public-facing communications about the investigation, or Dr.
Strauss (Requests for Production Nos. 1, 3, 7, 10-15); and
(3) Perkins Coie’s retention (Request for Production No. 2).
(ECF No. 135 at 4, characterizing the requested discovery as “the Perkins Coie Requests.”) In
terms of numbers, the current Motion involves fourteen Requests for Production and four
Interrogatories.
According to Plaintiffs, OSU has taken two approaches to these Perkins Coie Requests.
For certain Requests, Plaintiffs assert that OSU has objected completely and refused to respond
or produce any documents. For other Requests, Plaintiffs claim that OSU has produced a very
limited set of responsive documents or directed Plaintiffs to the entirety of its production.
Plaintiffs explain that the failure to resolve the issue, despite good faith meet and confers,
necessitated their current Motion.
In its Response, OSU explains that, using Plaintiffs’ search term “Perkins” for the period
from January 1, 2017, to the present, it has identified approximately 118,000 responsive
documents. (Declaration of Joseph Kunkel, ECF No. 139-1at ⁋ 5, “Kunkel Decl.”) Preliminary
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research of those 118,000 documents using the names of OSU’s internal and outside counsel
indicate that roughly 49,500, or 42%, “are likely to be privileged and/or work product protected.”
(Id. at ⁋ 6.) OSU estimates that the necessary review of these documents would require
approximately 5,400 hours and months to complete—at an estimated cost to OSU of
approximately $1,350,000.00. (Id. at ⁋ 7.)
As will be detailed below, OSU broadly objects to all the requests at issue in Plaintiffs’
current Motion on numerous bases. Nevertheless, for ease of reference, the full text of the
Interrogatories and RFPs at issue is set forth below verbatim:
INTERROGATORY NO. 18: Describe how documents were transmitted or sent
or delivered to Perkins Coie from OSU during Perkins Coie’s investigation of the
abuse committed by Dr. Strauss.
INTERROGATORY NO. 19: Identify all individuals formerly or currently
employed by OSU who compiled, gathered, and/or transmitted to Perkins Coie any
documents in relation to Perkins Coie’s investigation of the abuse committed by
Dr. Strauss, including the following documents, Bates stamped:
a. CTRL000001 – 6000;
b. CTRL_HC_00000001- 170000;
c. RHS_00001 – 900;
d. STRAUSSREFERENCE0000001 – 14000.
INTERROGATORY NO. 20: Identify all individuals formerly or currently
employed by OSU who oversaw, directed, or instructed individuals identified in
Interrogatory 19 regarding the compilation and delivery of these documents to
Perkins Coie.
INTERROGATORY NO. 21: Identify all individuals formerly or currently
employed by OSU who were tasked with reviewing documents before they were
provided to Perkins Coie in advance of or during their investigation.
REQUEST 	FOR 	PRODUCTION 	NO. 	1: 	All 	documents 	(including
communications within Ohio State, communications between you and any external
party advising you on public relations, reputational management and/or crisis
management and communications between you and any member of the press)
concerning the investigation into Dr. Strauss’s abuse that you announced in April
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2018 and the subsequent litigation, including but not limited to all documents
underlying and related to:
a. 	Ohio State news releases issued on: April 5, 2018; May 3, 2018;
June 7, 2018; July 20, 2018; August 16, 2018; August 30, 2018;
September 7, 2018; November 15, 2018; November 16, 2018;
February 22, 2019; May 17, 2019; May 31, 2019; October 1,
2019; November 21, 2019; February 27, 2020; March 6, 2020;
May 8, 2020; October 13, 2020; December 17, 2020; May 7,
2021; April 15, 2022; and July 22, 2022.
b. 	Campus-wide 	email 	communications 	from 	OSU 	President
Drake on: May 3, 2018; June 7, 2018; July 20, 2018; November
15, 2018; February 1, 2019; May 17, 2019.
c. 	Emails from President Drake to alumni sent on: May 21, 2018;
February 1, 2019; May 17, 2019; October 1, 2019.
d. 	Emails from President Drake to former student-athletes sent on:
June 12, 2018; February 1, 2019; May 17, 2019; October 1,
2019.
e. 	Statements by President Drake on May 20, 2019.
f. 	The Affirmation of Commitment to resolve claims involving
Richard Strauss, Resolution No. 2020-100, made on February
27, 2020.
g. 	Content 	and 	language 	maintained 	on
straussinvestigation.osu.edu, including but not limited to the
questions and answers provided for the media.
REQUEST FOR PRODUCTION NO. 2: All documents concerning the retention
of Perkins Coie LLP to conduct the investigation into Dr. Strauss’s abuse.
REQUEST 	FOR 	PRODUCTION 	NO. 	3: 	All 	documents, 	including
communications, 	generated 	by 	any 	Senior 	Vice 	President, 	Vice 	President,
Associate Vice President, Dean, Associate Dean, Assistant Dean, Department
Chair, member of the Board of Trustees, or President of OSU, concerning Perkins
Coie LLP’s investigation.
REQUEST FOR PRODUCTION NO. 7: All documents or communications
within Ohio State or between you and any external party concerning Dr. Strauss,
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any investigation concerning Dr. Strauss, or any of the litigations concerning Dr.
Strauss.
REQUEST 	FOR 	PRODUCTION 	NO. 	10: 	All 	communications 	between
members of the OSU Board of Trustees at any time concerning Dr. Strauss, any
investigation concerning Dr. Strauss, or any of the litigations concerning Dr.
Strauss.
REQUEST FOR PRODUCTION NO. 11: All communications between one or
more members of the OSU Board of Trustees and anyone (other than OSU counsel)
concerning Dr. Strauss, any investigation concerning Dr. Strauss, or any of the
litigations concerning Dr. Strauss.
REQUEST FOR PRODUCTION NO. 12: All communications between OSU
President Michael V. Drake and anyone (other than OSU counsel) concerning Dr.
Strauss, any investigation concerning Dr. Strauss, or any of the litigations
concerning Dr. Strauss.
REQUEST FOR PRODUCTION NO. 13: All communications between OSU
President Kristina M. Johnson and anyone (other than OSU counsel) concerning
Dr. Strauss, any investigation concerning Dr. Strauss, or any of the litigations
concerning Dr. Strauss.
REQUEST FOR PRODUCTION NO. 14: All communications between OSU
Acting President Peter Mohler and anyone (other than OSU counsel) concerning
Dr. Strauss, any investigation concerning Dr. Strauss, or any of the litigations
concerning Dr. Strauss.
REQUEST FOR PRODUCTION NO. 15: All communications between OSU
President Walter E. Carter Jr. and anyone (other than OSU counsel) concerning Dr.
Strauss, any investigation concerning Dr. Strauss, or any of the litigations
concerning Dr. Strauss.
REQUEST 	FOR 	PRODUCTION 	NO. 	26: 	All 	documents 	memorializing
directive(s) or instructions given to OSU employees regarding their duties in
collection of documents for Perkins Coie during its investigation of the abuse
committed by Dr. Strauss.
REQUEST FOR PRODUCTION NO. 27: All correspondence with Perkins Coie
before and during its investigation of the abuse committed by Dr. Strauss, including
all correspondence and/or memoranda that accompanied documents which OSU
provided to Perkins Coie in the course of the investigation.
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REQUEST FOR PRODUCTION NO. 28: All documents that You originally
collected for Perkins Coie, but ultimately did not provide to Perkins Coie during its
investigation of the abuse committed by Dr. Strauss.
REQUEST FOR PRODUCTION NO. 29: All documents showing dates when
documents and/or materials were sent to and received by Perkins Coie during its
investigation of the abuse committed by Dr. Strauss.
II.
Federal Rule of Civil Procedure 37 permits a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests, provided that the
motion to compel includes “a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Consistent with this, Local Rule 37.1
requires the parties to “exhaust[ ] among themselves all extrajudicial means for resolving their
differences” before filing an objection, motion, application, or request relating to discovery. S.D.
Ohio Civ. R. 37.1. Local Rule 37.1 also allows parties to first seek an informal telephone
conference with the Judge assigned to supervise discovery in the case, in lieu of immediately
filing a discovery motion. Id. The Court is satisfied that this prerequisite has been met here.
“District courts have broad discretion over docket control and the discovery process.”
Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citation omitted). “‘It is
well established that the scope of discovery is within the sound discretion of the trial court.’” Id.
(quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). The Federal Rules of Civil
Procedure provide that “[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R.
Civ. P. 26(b)(1). While a plaintiff should “not be denied access to information necessary to
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establish her claim,” a plaintiff may not be “permitted to go fishing and a trial court retains
discretion to determine that a discovery request is too broad and oppressive.” In re Ohio
Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016) (citation omitted); see also
Gallagher v. Anthony, No. 16-cv-00284, 2016 WL 2997599, at *1 (N.D. Ohio May 24, 2016)
(“[D]istrict courts have discretion to limit the scope of discovery where the information sought is
overly broad or would prove unduly burdensome to produce.”).
“The proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Gruenbaum v. Werner Enter., Inc., 270 F.R.D. 298, 302
(S.D. Ohio 2010) (citation omitted). If the movant makes this showing, “then the burden shifts to
the non-movant to show that to produce the information would be unduly burdensome.” Prado v.
Thomas, No. 3:16-CV-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citing O'Malley
v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1)
advisory committee's note to 2015 amendment (stating that a party claiming undue burden or
expense “ordinarily has far better information—perhaps the only information—with respect to
that part of the determination” and that a “party claiming that a request is important to resolve
the issues should be able to explain the ways in which the underlying information bears on the
issues as that party understands them”).
The Federal Rules of Civil Procedure grant parties the right to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1); see also Siriano v. Goodman Mfg. Co., L.P., No. 2:14-CV-1131, 2015 WL 8259548,
at *5 (S.D. Ohio Dec. 9, 2015). “Relevance is construed very broadly for discovery purposes.”
Doe v. Ohio State Univ., No. 2:16-CV-171, 2018 WL 1373868, at *2 (S.D. Ohio Mar. 19, 2018)
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(citation omitted). Despite being construed broadly, the concept of relevance is not unlimited.
Averett v. Honda of Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL 799638, at *2 (S.D. Ohio March
24, 2009). Indeed, “[t]o satisfy the discoverability standard, the information sought must have
more than minimal relevance to the claims or defenses.” Doe, 2018 WL 1373868 at *2 (citations
omitted). Furthermore, when information is “negligibly relevant [or] minimally important in
resolving the issues” this will not satisfy the standard. Id. (citation omitted).
III.
Plaintiffs’ arguments, discussed in more detail below, are straightforward. First,
Plaintiffs assert that the documents and information sought through the Perkins Coie Requests
are relevant. Further, they contend that OSU has no legitimate basis for withholding information
or documents responsive to these Requests. More specifically, with respect to their second
argument, Plaintiffs assert that the documents sought are solely within OSU’s custody and
control, providing responsive information would not be unduly burdensome for OSU, and neither
the attorney-client privilege nor work-product doctrine applies.
Not surprisingly, OSU has a different view, detailing its own version of its discovery
efforts to date. Somewhat more substantively, OSU contends that Plaintiffs’ current Motion is a
backdoor attempt to re-litigate Plaintiffs’ prior motion in limine relating to the Perkins Coie
Report, a motion the Court has denied without prejudice as premature. (ECF No. 45.) 	Further,
OSU contends that the information sought is cumulative or duplicative of Plaintiffs’ subpoena to
Perkins Coie, the subject of In re: Subpoena to Perkins Coie LLP, Case No. 2:19-mc-38 (the
“Subpoena Litigation”). Additionally, OSU argues that the information sought through the
Perkins Coie Requests is irrelevant or impermissible “discovery-about-discovery,” unduly
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burdensome, and disproportional for a host of reasons. Beyond this, OSU asserts that the
information sought is likely protected by the attorney-client privilege or work-product doctrine.
(ECF No. 139 at 18) (emphasis added). Most boldly, however, OSU suggests that the Court
should “remedy” what OSU characterizes as “the prior injustice” arising from the Court’s
decision in the Subpoena Litigation. (Id. at 20.)
Plaintiffs counter OSU’s arguments in reply and note their willingness to confer with
OSU to alleviate the claim of undue burden. The parties’ arguments are addressed in turn below.
A. 	Preliminary Matters
Initially, the Court quickly dispenses with certain issues raised in OSU’s Response. First,
OSU claims that the current Motion is Plaintiffs’ attempt to re-litigate their earlier motion in
limine. According to OSU, Plaintiffs are engaging in substantive motions practice on behalf of
all Plaintiffs, in contravention of the Court’s discovery stay and the Court’s prohibition on filing
such motions. (See ECF No. 139 at 9 citing Case Management Order No. 4, ECF No. 103.)
This argument is meritless.2 As Plaintiffs note, the focus of their Motion is the information
necessary to establish the Report’s admissibility, not the issue of admissibility. (ECF No. 141 at
8.) The Court agrees. Accordingly, the Motion to Compel will not be denied on this basis.
Next, OSU complains that the information sought is cumulative or duplicative of
Plaintiffs’ subpoena to Perkins Coie. According to OSU, RFP Nos. 3, 7, 27, and 29 in this case
are similar to Subpoena Requests 1, 3, and 7 in the Subpoena Litigation.3 Additionally, OSU
2 The Court also notes that, later in its response, OSU proceeds to do exactly what it accuses
Plaintiffs of wrongfully doing. (See ECF No. 139 at 14 incorporating its opposition to the
motions to admit the Report into evidence.)
3 The cited Subpoena Requests are restated here verbatim:
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cites certain documents already produced by Perkins Coie that would be responsive to RFP No.
2, Interrogatory No. 18, or RFP Nos. 26 and 28. Finally, OSU asserts that the Court had ordered
Plaintiffs to meet and confer with Perkins Coie regarding much of the same information they are
now seeking from OSU here.
Plaintiffs explain that they seek information only in OSU’s possession that has not been
previously produced to Plaintiffs. According to Plaintiffs, they did not seek the requested
information from Perkins Coie, it has not been produced by Perkins Coie, and it is not likely to
be in Perkins Coie’s possession.
The Court has reviewed the relevant Interrogatories and RFPs set forth above. Based on
this review, OSU appears to overstate the extent of potential duplication. For example, to the
extent that RFP No. 2 is properly read as requiring the duplicate production of Perkins Coie’s
engagement letter with Porter Wright, even assuming that to be true, that engagement letter is
only one document. For purposes of resolving the current motion, the Court will not require
OSU to produce that document in response to RFP No. 2. As for OSU’s claim that the
Certification of Counsel filed by Perkins Coie in the Subpoena Litigation would be responsive to
Interrogatory No. 18, OSU is not precluded from directing Plaintiffs to that document in its
discovery responses. Additionally, to the extent that language in the Perkins Coie Report itself
1. 	All documents provided by The Ohio State University in relation to or referenced in the
Perkins Coie Report or your investigation into sexual abuse committed by Dr. Richard
Strauss at the Ohio State University.
2. 	All communications in relation to or concerning the Perkins Coie Report.
7. All communications between OSU, on the one hand, including without limitation
President Drake, OSU’s Board of Trustees, any member of the Board of Trustees,
OSU’s counsel, and Perkins Coie LLP, on the other hand, concerning the Perkins Coie
Report, including the Perkins Coie Report’s findings and any draft reports.
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may impact OSU’s response to RFP Nos. 26 or 28, again nothing prevents OSU from
communicating that impact in its discovery responses. Finally, to the extent OSU asserts that
RFP Nos. 3, 7, 27, and 29 are similar to Subpoena Request Nos. 1, 3, and 7 at issue in the
Subpoena Litigation, OSU fails to acknowledge the pared down nature of the Subpoena Requests
ultimately litigated in that miscellaneous action as discussed more fully below.
Finally, OSU claims that the current discovery requests amount to “discovery-on-
discovery.” In OSU’s view, the information Plaintiffs seek is “process-related discovery” with
no relevance to the elements of each Plaintiff’s Title IX claims. The Court disagrees. Plaintiffs
are not seeking information on the various steps OSU took to locate, preserve, review and
produce information in specific response to the discovery requests propounded by Plaintiffs in
the current litigation. Rather, as Plaintiffs explain, the discovery at issue seeks substantive
information regarding how closely OSU worked with Perkins Coie during the Investigation.
Consequently, the Motion to Compel will not be denied on any of the above bases.
B. The Information Sought is Relevant
Initially, on the matter of relevance, Plaintiffs contend that the Perkins Coie Investigation
and Report “are core to this litigation and [their] claims.” (ECF No. 135 at 6.) Plaintiffs affirm
their position that the Perkins Coie findings substantiate OSU’s deliberate indifference under
Title IX. As Plaintiffs state, “[t]he Report, based on Perkins Coie’s multi-year and multi-million
dollar investigation, makes detailed findings about the extent of Dr. Strauss’s abuse and about
Ohio State’s knowledge of and inaction toward that abuse, on a department-specific basis.” (Id.
at 7.)
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For its part, OSU claims that “[d]iscovery about the Perkins Coie Report and its genesis,
as well as documents and communications from the present day, do not answer whether Ohio
State violated the Title IX rights of Discovery Plaintiffs 30-50 years ago and is improper.” (ECF
No. 139 at 13) (emphasis in original). That is, in OSU’s view, this requested discovery has no
relevance to the specific elements each Plaintiff must prove to establish their Title IX claims.
OSU, citing the Sixth Circuit’s decision in Synder-Hill v. Ohio State University, 48 F.th 686
(2022) summarizes these elements as requiring each plaintiff to prove:
(a)“Ohio State administrators ‘with authority to take corrective action’ knew of
Strauss’s conduct and failed to respond appropriately” at the time of each incident
of alleged abuse for each plaintiff, and that Ohio State was deliberately indifferent;
and, (b) for each plaintiff, that Ohio State, as an institution, “‘(1) [] maintained a
policy of deliberate indifference to reports of sexual misconduct, (2) which created
a heightened risk of sexual harassment that was known or obvious (3) in a context
subject to the school’s control, and (4) as a result, the plaintiff suffered harassment
that was ‘so severe, pervasive, and objectively offensive that it can be said to [have]
deprive[d] the [plaintiff] of access to the educational opportunities or benefits
provided by the school’” at the time of each incident of alleged abuse for each
plaintiff.
(ECF No. 139 at 13 n. 7 citing Snyder-Hill, at 703-705.)
In reply, Plaintiffs reiterate that information surrounding the creation of the Report is
relevant for two reasons. First, according to Plaintiffs, OSU has claimed the Report itself is
inadmissible hearsay and has sought to distance itself from the Report’s conclusions. Plaintiffs
assert that the Court’s admissibility inquiry will require an evaluation of the Report’s reliability
which will include consideration of information pertaining to “how closely Ohio State worked
with Perkins Coie, Ohio State’s oversight and decision-making into the document compilation,
which documents were relied upon by Perkins Coie and what Ohio State’s own communications
say about the Report and investigation.” (ECF No. 141 at 7.) Additionally, Plaintiffs contend
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that OSU’s own communications about the Report and Investigation constitute party admissions,
illuminate OSU’s previous admissions regarding its failure to protect students from Strauss, and
inform the deposition testimony of current and former OSU employees. As to the relevancy of
the requested discovery to the specific Discovery Plaintiffs, Plaintiffs argue that the Discovery
Plaintiffs’ cases “are based on largely or entirely the same factual circumstances as the larger
group of Plaintiffs,” even if specific damages may differ. (Id. at 8.)
The Court finds the requested discovery to be relevant. To be sure, as OSU contends,
Rule 26 permits discovery only of information “relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); Helena Agri-Enters., LLC v.
Great Lakes Grain, LLC, 988 F.3d 260, 273 (6th Cir. 2021). Nevertheless, although not
unlimited, relevance for purposes of discovery is broadly construed by courts. See, e.g.,
Halderman v. Herring Networks, Inc., 348 F.R.D. 305, 310 (E.D. Mich. 2025) (recognizing that
relevance, for purposes of discovery, is an extremely broad concept which presents a relatively
low threshold). That is, the scope of relevance is any matter that bears on or could reasonably
lead to another matter that could bear on the claims or defenses of any party in a case. Dodd v.
Hendrickson USA, LLC, 349 F.R.D. 286, 298 (W.D. Ky. 2025). Essentially, a request for
discovery seeks relevant information if there is any possibility that the information sought may
be relevant to a claim or defense of any party in the action. Braun v. Norton Healthcare, Inc.,
No. 3:24-CV-00039-DJH-CHL, 2025 WL 3680326, at *2 (W.D. Ky. Dec. 18, 2025). Thus,
courts may utilize their discretion to expand discovery based on the particular needs of the case.
See Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993) (noting that “the scope of discovery is
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within the sound discretion of the trial court”). In short, discovery is generally allowed unless it
has no possible bearing on such claims or defenses.
Here, the Court easily concludes that Plaintiffs’ requested discovery satisfies the applicable
relevance standard and rejects OSU’s overly restrictive interpretation of that standard. It takes
little imagination to understand Plaintiffs’ stated importance of the Report’s findings to their
claims in these cases. Thus, information designed to assist Plaintiffs in pursuing the
admissibility of the Report at the appropriate stage of this proceeding seems well within the
bounds of relevance.
OSU’s additional arguments opposing the finding of relevance also are unavailing. 	For
example, OSU challenges Plaintiffs’ agency and party-admissions arguments, incorporating by
reference its opposition to Plaintiffs’ earlier motion seeking admission. This argument has no
place in the context of a discovery motion.
Similarly, OSU’s claim that circumstances surrounding the Report are not relevant
because Plaintiffs are not asserting that any of the information OSU made available to Perkins
Coie is unreliable sidesteps the issue here. As Plaintiffs note, the issue of the Report’s reliability
entails an inquiry “separate and apart” from whether the documents OSU provided to Perkins
Coie “are themselves admissible and reliable.” (ECF No. 141 at 7, n. 3.)
Finally, OSU’s claim that Plaintiffs have failed to address how the requested discovery is
relevant for any of the 20 Discovery Plaintiffs is equally unpersuasive. As Plaintiff’s explain,
the Discovery Plaintiffs’ cases are based on largely or entirely the same factual circumstances as
the larger group of Plaintiffs. As Plaintiffs explain, in an effort at efficiency, they are seeking the
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same “corpus of information” applicable to all Discovery Plaintiffs through the single set of
Perkins Coie Requests here. (ECF No. 141 at 12.)
For all these reasons, the Motion to Compel will not be denied on the basis that the
requested discovery is not relevant.
C. The Information Sought is not Unduly Burdensome and is Proportional
Beyond the issue of relevance, OSU also contends that the information sought through
the Perkins Coie Requests is disproportional or unduly burdensome for several reasons: (1) OSU
and Perkins Coie already have provided tens of thousands of pages of documents related to
Perkins Coie; (2) Plaintiffs had ample time and opportunity to obtain Perkins-Coie related
discovery from Perkins Coie itself during the heavily litigated subpoena action; (3) the
information is irrelevant; (4) clear defenses bar Plaintiffs’ claims; (5) Plaintiffs already received
improper discovery disproportional to the needs of the case in the Subpoena Litigation and the
error should not be compounded; and (6) determining privilege or work product protection will
be unduly burdensome, both in time and expense. Plaintiffs dispute each of these claims of
undue burden and disproportionality. The Court considers the issues raised by OSU in turn.
OSU’s first argument focuses on the number of documents already produced by it or
Perkins Coie.4 That OSU and Perkins Coie already have produced thousands of pages of
documents is no surprise. Perkins Coie investigated allegations spanning decades and
interviewed witnesses across a sprawling public institution. OSU’s second argument is likewise
not compelling. As already noted, the scope of the Subpoena Litigation involved pared down
4 OSU asserts that it has produced 38,952 pages of documents between the fact sheet and formal
discovery processes. (Kunkle Decl., ECF No. 139-1 at ⁋ 3.) OSU also cites the “many
thousands” of pages published on its public website. See https://news.osu.edu/report-of-the-
independent-investigation-into-sexual-abuse-committed -by-dr-richard-strauss/
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requests and many of the documents being requested here, as Plaintiffs explain, are unlikely to
be in Perkins Coie’s possession. According to Plaintiffs, their current Requests encompass
OSU’s internal communications about the Investigation and Report, documents related to public
statements OSU made in the wake of the Report’s release, internal OSU communications about
Strauss more generally, communications between Ohio State employees or with external parties
who are not Perkins Coie, or documents collected by OSU but not provided to Perkins Coie
during the Investigation. (ECF No. 141 at 10-11.) 	As for OSU’s third argument which
incorporates its relevance challenges, the above discussion rejects those challenges and that
reasoning applies here as well.
OSU’s claim of undue burden also raises substantive merits-based issues. Specifically,
OSU argues that some Plaintiffs’ claims are barred by the statute of limitations and other
Plaintiffs’ claims are barred by Eleventh Amendment immunity. These arguments, too, are
easily rejected. In short, the Court does not consider the merits of a claim when deciding a
motion to compel. Brahmamdam v. Trihealth Inc., 2021 WL 2555066, *2 (S.D. Ohio Jun. 22,
2021). As explained in that case,
[A]rguments directed at the merits of a party’s claims or the viability of affirmative
defenses should be addressed by way of dispositive motion or at trial and not during
a discovery dispute. Stafford v. Jewelers Mut. Ins. Co., No. 3:12-cv-50, 2012 WL
6568325, at *3 (S.D. Ohio Dec. 17, 2012) (citations omitted). See also South Pointe
Wholesale, Inc. v. Vilardi, No. 1:17-cv-52, 2018 WL 1721936, at *3 (W.D. Ky.
Apr. 9, 2018) (“the scope of a motion to compel . . . is confined to an evaluation of
whether the discovery sought is relevant to a claim or defense”).”
Brahmamdam, at *2. Moreover, the focus of the federal discovery rules, particularly
Fed.R.Civ.P. 26, is that parties “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense.” (Emphasis added). And, the obvious
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inappropriateness of the argument aside, it bears noting that OSU is not arguing the claims of all
Plaintiffs are subject to dismissal on either of the identified bases, instead suggesting that
approximately 157 Plaintiffs are subject to these defenses. (ECF No. 139 at 17.) As discussed
earlier, however, the relevance of the information sought extends to all Plaintiffs. Thus, the
dismissal of some Plaintiffs would not impact the need for proper responses to the Perkins Coie
Requests.
This brings the Court to OSU’s fifth assertion regarding the disproportionate nature of
Plaintiffs’ discovery requests. This assertion only can be characterized as a completely
inappropriate attack on the Court’s Opinion and Order dated May 8, 2024, issued in the related
Subpoena Litigation. (Case No. 2:19-mc-38, ECF No. 89.) OSU expounds upon this argument
somewhat further in the final subsection of its responsive argument. (ECF No. 139 at 21-22.) In
doing so, it daringly states that, by way of remedy, the Court should “prohibit[] further use of
Perkins Coie’s work product-protected interview notes and memoranda, bar[] the admission into
evidence of the Perkins Coie Report and/or dismiss[] plaintiff’s claims.” (Id. at 22.) At
minimum, this argument is stunningly improper in the context of the current Motion. Indeed, it
falls far below the level of professionalism typically exhibited by, and frankly, expected from,
counsel for OSU when practicing before this Court. To be clear, OSU was permitted to
intervene in the Subpoena Litigation. (Case No. 2:19-mc-38, ECF No. 39.) 5 It could have
5 The Court is fully aware that OSU was not represented by current litigation counsel in the
Subpoena Litigation. That is no justification for such a breach.
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pursued a challenge to the Court’s ruling in that matter. It did not. 6 Accordingly, the Court will
not make a finding of disproportionality on this basis.
OSU’s final point on the matter of undue burden or proportionality relies on claims of
attorney-client privilege or the work-product doctrine. Again, OSU relies on the information set
forth in the Kunkel Declaration regarding the number of identified documents and the time and
cost of a document review. OSU then expounds upon these issues in a separate subsection of its
6 In fact, at a critical moment, OSU did not present as an active participant in the Subpoena
Litigation. This caused the Court to invite OSU’s active participation after the subject motion to
quash was reinstated. 	As stated by the Court in its Order dated January 3, 2024, inviting
additional briefing, the Court specifically stated:
Also of concern to the Court is the information absent from the record. In moving
to intervene, OSU stated that Perkins Coie cannot represent or speak on its behalf.
(ECF No. 29 at 7.) Yet, despite its acknowledgment that it holds a “shared
interest” in the “work product privilege” which it claims it has not waived, it has
offered no briefing or evidentiary support on this issue. (Id. at 3.)
(Case No. 19-mc-38, ECF No. 75 at 10.) That Order also stated the following:
Further, Perkins Coie’s claim of work product protection is undermined by certain
representations made in various filings. For example, the Court notes with
particularity a statement in OSU’s response to Plaintiffs’ motion requesting that the
Court order Perkins Coie and OSU to participate in a conference scheduled in the
underlying actions. That statement is set forth here verbatim as follows:
Ohio 	State 	separately 	engaged 	Porter 	Wright 	to 	oversee 	an
independent, 	external 	investigation, 	unrelated 	to 	any 	future
adversarial or litigation proceedings. The resulting investigation
and report were informative to Ohio State to bring closure to the
community regarding behavior by Dr. Richard Strauss from decades
ago. What information that was still available after 20-40 years
assisted Porter Wright and Perkins Coie in accomplishing that
objective.
(ECF No. 67 at 1-2) (emphasis added). …
(Id.)
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responsive argument. (ECF No. 139 at 18-21.) 	Thus, the Court will address this final point
below.
D. 	The Court will not Issue a Blanket Ruing on the Applicability of Attorney-
Client Privilege or Work-Product Protection
Plaintiffs assert that the Court already addressed the issues of attorney-client privilege
and work- product protection as they relate to Perkins Coie documents in the Subpoena
Litigation and concluded that neither provides an automatic shield to disclosure. In Plaintiffs’
interpretation, the Court “found that documents and communications generated in furtherance of
the Perkins Coie investigation – whether by Ohio State employees or otherwise – were created
for an investigation that “’would have been undertaken in the same manner regardless of
litigation.’” (ECF No. 135 at 11 quoting Case No. 2:19-mc-38, ECF No. 89 at 9.) In making
these arguments, Plaintiffs challenge any effort by OSU to distinguish between documents
generated by Perkins Coie and documents generated by OSU during the Investigation and object
to what they view as OSU’s wholesale assertion of either protection. Nevertheless, recognizing
that OSU may have appropriate assertions of privilege or work product protection regarding the
Perkins Coie Requests, Plaintiffs request that the Court order production of a privilege log.
For its part, OSU asserts that communications within OSU and between OSU and Porter
Wright and/or Perkins Coie are privileged where such communications involve the rendering or
soliciting of legal advice. OSU also cites the well-established principle that documents prepared
by an attorney in anticipation of litigation may constitute protected work product. OSU
highlights that, in recognition of these precise protections, Plaintiffs themselves have refused to
produce their own internal press-related communications, including those related to the Perkins
Coie Investigation and Report. OSU also points out that, to the extent Plaintiffs are seeking a
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privilege log, such a request contravenes the agreed upon provision the governing ESI Order that
“the Parties shall have no obligation to log information generated on or after March 27, 2018.”
(ECF No. 139 at 19 citing Stipulated ESI Order, Case No. 2:23-cv-2993, ECF No. 126.) OSU
also asserts that Plaintiffs’ reliance on the Opinion and Order in the Subpoena Litigation is
misplaced as that decision only addressed the applicability of privilege or work product
protection to documents not at issue here. 7
These issues do not require extensive discussion. Quickly, OSU’s argument regarding
Plaintiffs’ withholding of certain press-related communications is not persuasive. In short, it
simply fails to recognize the differing posture between OSU and Plaintiffs when it comes to
internal communications relating to the Perkins Coie Report and the Strauss Investigation. As
for the backdrop of the Opinion and Order in the Subpoena Litigation, it should go without
saying that the Court’s application of the attorney-client privilege and work product doctrine was
based solely on the participants’ arguments and evidentiary submissions in the context of that
specific proceeding. To refresh, and for ease of reference, the only information at issue in the
Subpoena Litigation was:
four categories of information identified in Plaintiffs’ response to Perkins Coie
LLP’s (“Perkins Coie”) motion to quash Plaintiffs’ subpoena, see ECF No. 35 (Pls.’
Response) at 2: “(1) the identity of OSU witnesses described in Perkins Coie’s
7 OSU also characterizes the Opinion and Order in the Subpoena Litigation as relying on
FirstEnergy Corp. Sec. Litig., No. 2:20-CV-3785, 2023 WL 8290917, at *8 (S.D. Ohio Nov. 29,
2023), and notes the Sixth Circuit’s subsequent decision staying the order in First Energy
pending the resolution of First Energy’s petition for a writ of mandamus. (ECF No. 139 at 20
citing In re First Energy Corp., No. 24-3654, 2025 WL 2335978 (6th Cir. Aug, 7, 2025)). As
noted by Plaintiffs, the Sixth Circuit ultimately granted mandamus relief. In re FirstEnergy
Corp., 154 F.4th 431 (6th Cir. 2025). Notably, in doing so, OSU both mischaracterizes the
Court’s citations to FirstEnergy in the Subpoena Litigation and ignores the obvious factual
distinctions between the circumstances of the Perkins Coie Investigation and those at issue in
FirstEnergy.
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Report; (2) Perkins Coie’s notes of communications with those witnesses; (3) its
written communications with non-survivor OSU witnesses; and (4) OSU records
which Perkins Coie uploaded into its electronic discovery database.” Plaintiffs are
not seeking the identity of, notes of communications with, or communications with
the 177 survivor witnesses but are seeking the identity of, notes of communications
with, 	and 	communications 	with 	current 	and 	former 	OSU 	employees,
third[1]party/non-OSU 	witnesses, 	and 	other 	student 	witnesses—categories
delineated in Perkins Coie’s chart of “Number and Category of Witnesses
Interviewed”—and included within Plaintiffs’ underlying requests.
(Case No. 2:19-mc-38, ECF No. 89 at 2.) Here, as Plaintiffs explain, they seek information and
documents distinct from this information. Importantly, however, for purposes of resolving the
current Motion, the parties have not presented the Court with a similarly meaningful record on
which it could reach any conclusion regarding the applicability of either attorney-client privilege
or work product protection. At best, OSU has made a sweeping request that the Court issue a
blanket ruling either upholding the wholesale applicability of privilege and work product
protection to the Perkins Coie Requests at issue here while Plaintiffs urge the rejection of such an
approach. At bottom, without the support of a useful record, the Court will not deny the current
Motion to Compel based on a sweeping application of attorney-client privilege or work-product
protection.
Nevertheless, the Court is mindful of the issues raised by OSU regarding the number of
responsive documents identified, potential privilege and work product protection issues, and the
asserted time and expense of an appropriate review. The Court also recognizes Plaintiffs’ offer
to meet and confer with OSU to narrow the operative search terms and custodians, recognizing
that it is in their interest to do so. (ECF No. 141 at 13.) Accordingly, rather than order any
production of documents at this time, the Court will order the parties to meet and confer
WITHIN TEN DAYS of the date of this Opinion and Order to work toward a prompt resolution.
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The parties will then be required to report back to the Court WITHIN THIIRTY DAYS of the
date of this Opinion and Order to advise the Court of their progress.
In ordering this meet and confer, the Court also recognizes that OSU is correct in its
position regarding the requirement of a privilege log. In the Stipulated Order Regarding
Production of Electronically Stored Information and Scanned Hard-Copy Documents dated
August 21, 2025, and entered in Case Nos. 2:23-cv-2993, 2:23-cv-2994 and 2:23-cv-3051, the
signing parties specifically agreed to the following provision:
IV. PRIVILEGE ISSUES
A. Privilege Log Protocol.
For any responsive Document withheld in part or in its entirety, the Producing Party
will produce privilege logs in Excel format that permit electronic sorting and
searching, except that the Parties shall have no obligation to log information
generated on or after March 27, 2018. A Producing Party will produce a separate
privilege log for each production within thirty (30) days of the production of
documents for which a privilege is asserted. Privilege logs for each custodian must
be complete and produced ten (10) days before the custodian’s deposition.
(Case No. 23-cv-2993, ECF No. 126) (emphasis added). During the meet-and-confer process, the
Court encourages the parties to refrain from allowing this agreement to prevent an otherwise
workable resolution.8
IV.
For the reasons set forth above, the Motion to Compel (ECF No. 135) is GRANTED. In
lieu of ordering immediate responses or production, the Court DIRECTS the parties to meet and
confer WITHIN TEN DAYS OF THE DATE OF THIS OPINION AND ORDER and to
8 The Court notes Plaintiffs’ suggestion that it would be within the Court’s power to reject this
limitation on the need for a privilege log. (ECF No. 135 at 12, n. 8.) The Court declines to make
such a ruling at this time.
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report back to the Court WITHIN THIRTY DAYS OF THE DATE OF THIS OPINION
AND ORDER to advise the Court of their progress.
IT IS SO ORDERED.
Date: January 28, 2026
s/ Michael H. Watson________________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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