Plaintiff, Robert Neinast, moves the court for an order compelling Defendants, the Board of Trustees of the Columbus Metropolitan Library and Patrick A. Losinski, to answer the following Interrogatories submitted to them to which an objection was asserted in lieu of an answer, on the grounds that the Interrogatories are proper and not subject to objection:

(a) Interrogatory No. 3.

(b) Interrogatory No. 5.

(c) Interrogatory No. 7.

(d) Interrogatory No. 8.

(e) Interrogatory No. 10.

(f) Interrogatory No. 16.

(g) Interrogatory No. 17.

(h) Interrogatory No. 18.

(i) Interrogatory No. 19.

(j) Interrogatory No. 20.

A copy of the Interrogatories with Responses are hereto attached as Exhibit A.

Civil Rule 37(E) Statement

Plaintiff telephoned Defendants' attorney, Johnathan E. Sullivan on the morning of August 30, 2004 to discuss the objections to all of Plaintiff's Interrogatories, and to make a reasonable effort to resolve the matter. Plaintiff decided to forego some of the Interrogatories (Nos. 2, 4, 6, 11, 12, 14, 15). During the discussion, Mr. Sullivan agreed to provide a copy of the Library's Harassment Policy and a copy of the Library's Policy pertaining to the provision of library services to individuals who are not inhabitants of Franklin County, which he mistakenly thought were part of the Responses in Plaintiff's previous lawsuit, but were not (Interrogatory No. 9). Also, Mr. Sullivan informed Plaintiff that the Board of Trustees of the Library has recently officially passed a new code of conduct, which will be provided to Plaintiff in Response to Interrogatory No. 13.

Plaintiff and Defendants' attorney were unable to come to agreement on the remaining Interrogatories, which are therefore the subject of this Motion.

Standards Relating to the Discovery of Admissible Evidence

One of the cruxes of this lawsuit is the statutory interpretation of O.R.C. 3375.40(H), and whether the authority granted to the Library by the Legislature to make "rules and regulations for the proper operation and management of the free public library" includes the authority to make a rule limiting the access to the Library of patrons who are not wearing shoes. Plaintiff has contended that such a rule is not part of the proper operation and management of a library, and that the Library is exceeding its legislative grant of authority.

With some exceptions, all relevant evidence is admissible (Evid. R. 402), and relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (Evid. R. 401). In addition, an "interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, . . ." (Civ. R. 33(B)).

Interrogatories Nos. 10, 16, 17, 18, and 19 are Proper and the Defendants Should be Compelled to Answer Them

Interrogatories Nos. 10, 16, 17, 18, and 19 all reach directly to the issue of whether a shoe rule is a more or less probable part of the proper operation and management of a library, since examining other, similar, situations probes the scope of "proper operation and management" and whether the legislative grant of authority intended to cover that scope.

For instance, if the scope of the legislative grant includes the authority of the Library to protect the safety of its patrons by banning high-heels (Interrogatory No. 17), then it is more probable that the scope also includes the authority to ban bare feet. On the contrary, if that is not within the legislative grant, then it is less probable that bare feet may be banned. The opinion, contention, or legal conclusion of the Library on this issue directly leads to the discovery of admissible evidence.

Additionally, whether a ban on bare feet in the Library is part of the proper operation and management of a library is made more or less probable by examining the conditions and rules at other venues. For instance, if other public buildings do not ban bare feet, but the Library does, it is less probable that their shoe rule is part of the proper operation and management of a library, unless there is some special condition in public libraries that does not occur in those other buildings (Interrogatory No. 19). If Mr. Losinki's quote in the January, 2004 issue of Columbus Monthly is accurate (Interrogatory No. 18), then it is more probable that the Library recognizes no special conditions in the Library; on the contrary, if the quote is materially inaccurate, then a special condition might exist, and a shoe rule might then more probably be related to the proper operation and maintenance of a library.

For Interrogatory No. 10, it was not intended that the scope of Defendants' answer be limited in any way different from Rule 33, only that the Defendants provide a straightforward, non-evasive answer.

For these reasons, Interrogatories Nos. 10, 16, 17, 18, and 19 are all proper, are reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer them.

Interrogatory No. 7 is Proper and the Defendants Should be Compelled to Answer It

One possible justification for a shoe rule might be that the presence of bare feet in the library materially distracts other patrons, or presents a danger to them. These conditions would appear to be part of the proper operation and management of a library. For instance, a ban on loud music would clearly be part of the proper operation and management of a library, since the ban prevents patrons from making effective use of the library. On the other hand, a ban on headphones that do not disturb other patrons would most likely not be part of the proper operation and management of a library. Similarly, actions that endangered other patrons would also prevent them from making effective use of the library. Whether bare feet distract or endanger other patrons is thus admissible evidence making it more or less probable that a shoe rule is part of the proper operation and management of a library.

For these reasons, Interrogatory No. 7 is proper, is reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer it.

Interrogatories Nos. 3 and 5 are Proper and the Defendants Should be Compelled to Answer Them

One possible justification for a shoe rule might be that the presence of bare feet exposes the Library to liability, and that the legislative intent of "proper operation and management" is that libraries address this issue by banning certain dress choices of patrons. Examining previous injury lawsuits against the Library in which bare feet or footwear were involved (Interrogatory No. 3) reaches the issue of whether it is more or less probable that liability is a concern. For example, if there have been many lawsuits by injured barefoot patrons, then it is more probable that the Legislature considered these concerns a real problem and should be included in "proper operation and management". On the other hand, if the liability of a barefooted injury is minuscule, and just noise among the other sorts of minor injuries that can occur during daily life, then it is less probable that a shoe rule is part of the legislative intent. This is particularly true if the Library's cleaning service has agreed "to defend, indemnify, or insure against any portion of lawsuits filed against the Library" (Interrogatory No. 3), since this minimizes any liability exposure of the Library, and makes it less probable that the Legislature intended that a shoe rule be part of the proper operation and management of a library.

For these reasons, Interrogatories Nos. 3 and 5 are all proper, are reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer them.

Interrogatory No. 8 is Proper and the Defendants Should be Compelled to Answer It

Interrogatory No. 8 addresses evidence on whether the Library was negligent in depriving Plaintiff of his right to use the Library. If, after their previous evictions of him, they issued clarifying instructions to their guards, that provides evidence of either negligence before their issue, or due care after their issue. Contrariwise, if no new instructions were issued, that is evidence of continuing negligence in depriving him of his right to use the Library.

For this reason, Interrogatory No. 8 is proper, is reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer it.

Interrogatory No. 20 is Proper and the Defendants Should be Compelled to Answer It

For this reason, Interrogatory No. 8 is proper, is reasonably calculated to lead to the discovery of admissible evidence, and the Library should be compelled to answer it.

Conclusion

For all these reasons, Plaintiff prays that this court issue an order compelling that the Defendants answer the enumerated Interrogatories.

I hereby certify that a copy of the foregoing was served, by regular U.S. mail, postage prepaid upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this  1st  day of September, 2004.