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CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 1 of 5
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
SUMMA HEALTH SYSTEM f/k/a ) Case No.: CV-2015-02-0919
SUMMA AKRON CITY AND ST. )
THOMAS HOSPITALS ) Judge Lynne S. Callahan
)
Plaintiff, )
) SUMMA’S REPLY
vs. ) MEMORANDUM IN SUPPORT OF
) MOTION TO COMPEL
WESTERN RESERVE HOSPITAL ) DEPOSITIONS
PARTNERS, LLC, et al. )
)
Defendants.
WRHP and the Hospital assert that Summa should not be able to take the deposition of
Dr. Robert Kent (both individually and as WRHP’s Rule 30(B)(5) representative) because
Summa unilaterally cancelled Dr. Kent’s deposition on February 26, 2016 without WRHP
counsel’s authorization or agreement.
Summa did not unilaterally cancel the deposition. On Friday morning February 26, 2016,
Summa counsel Thomas Lucchesi sent defense counsel an email stating:
At the present time, the parties have noticed a number of depositions for Monday,
February 29th – Dr. Malone, Dr. Kent and Rule 30B5s of WRH, WRHP, Unity
and Premier. Please be advised that, for a number of reasons including but not
limited to attorney and witness availability, the incomplete production of
documents, and the various discovery motions pending before the Court, it is our
understanding that none of these depositions will proceed on Monday, but will be
rescheduled to a later date. (Exhibit “G” to WRHP’s Response to Motion to
Compel.)
This email was prompted by the objection of the Hospital’s counsel John Hill that he
would move for a protective order to prevent all the depositions noticed for February 29, 2016
unless counsel agreed to reschedule them to a later date:
Sandra Kurt, Summit County Clerk of Courts
CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 2 of 5
It appears that virtually all of the currently “scheduled” depositions were
unilaterally set, both by WRHP and Summa, on the dates that everyone knew I
would be out of the country.
From my perspective, this is not feasible. We selected numerous dates on which
everyone was available. Trying to be cooperative, I also gave the dates I was out
of the country but on the condition that I’d be given veto rights for important
depositions I had to attend. Now we’re unilaterally scheduling Tom O’Neil, Erik
Steele and Mr. Emig (my expert!) for the date I’m out of the country. And Dr.
Malone and Dr. Kent set for the same day [February 29, 2016], despite
everyone acknowledging they are key witnesses who will need most of the
day. (Emphasis added.)
***
I have no choice but to move the court for a protective order on these depositions,
unless something else can be worked out. I’m just providing notice of that. (John
Hill February 19, 2016 email, Exhibit “D” to WRHP’s response to Summa’s
Motion to Compel.)
Defendants claim that counsel did not reach any understanding to reset the February 29
depositions. But if either Attorney Davis or Attorney Hill disputed Attorney Lucchesi’s
February 26 email to this effect and intended to produce Dr. Kent on February 29, they should
have responded to inform him of that fact. Alternatively, they could have responded to Attorney
Lucchesi’s February 27 email requesting a conference call to discuss “the timing and scheduling
of . . . depositions.” (Exhibit “5” to Summa’s Motion to Compel.) Instead, both WRHP and the
Hospital remained silent and waited until March 1 to dispute Summa’s right to depose Dr. Kent.1
If defense counsel had replied to either of Summa’s emails prior to February 29 that they did not
1
WRHP points out that when Attorney Davis stated in early March that he would not produce
Dr. Kent for deposition, Attorney Lucchesi replied this was “not unexpected.” Attorney Davis’s
refusal to produce Dr. Kent for deposition is “not unexpected” because it is in keeping with
Attorney Davis’s history of frustrating the discovery in this case.
2
Sandra Kurt, Summit County Clerk of Courts
CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 3 of 5
understand or agree to reset the depositions, then the noticed depositions for February 29, 2016
would necessarily have gone forward on that date.2
Defendants should not be permitted to mislead Summa’s counsel through silence and
penalize Summa for not requiring the Hospital’s counsel to file a motion for protective order—
the very filing of which would have prevented the February 29 scheduled depositions from
proceeding. WRHP and the Hospital should not be rewarded for such gamesmanship.
Finally, as for Diane Burns, the Hospital argues that Summa was wrong to schedule her
deposition while Attorney Hill was on vacation. In fact, Attorney Hill made clear that only
certain depositions—Dr. Kent’s, Dr. Malone’s, and the appraisers’—could not go forward
without him. Indeed, he specifically offered to make coverage available for Diane Burns’s
deposition while he was out of the country (Exhibit “2” to Summa’s Motion to Compel), and all
counsel agreed following Mark Bosko’s deposition on February 23 that Ms. Burns’s deposition
would proceed two days later. Itwas not until the afternoon of February 24 that the Hospital
changed its mind and informed Summa’s counsel Ms. Burns’s deposition was being cancelled.
(Exhibit “3” to Summa’s Motion to Compel.) Summa gave Hospital counsel the courtesy of not
requiring a motion for protective order provided they agree to reschedule Ms. Burns’s deposition
(Id.), and again Hospital counsel remained silent until the day after the close of discovery
deadline.
For these reasons, Summa’s motion to compel should be granted.
2
Defendants argue that Dr. Kent’s deposition should not move forward because he already was
deposed in May 2015. In fact, the parties had agreed that his May deposition would be limited
only to those issues relevant to the preliminary injunction motion then pending. Moreover, as
the Court is aware, the claims and issues in this case have expanded since then.
3
Sandra Kurt, Summit County Clerk of Courts
CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 4 of 5
Respectfully submitted,
/s/Thomas R. Lucchesi
Thomas R. Lucchesi (#0025790)
tlucchesi@bakerlaw.com
Scott C. Holbrook (#0073110)
sholbrook@bakerlaw.com
Baker & Hostetler, LLC
3200 PNC Center
1900 E. Ninth Street
Cleveland, OH 44114
Phone: (216) 861-7672
Fax: (216) 696-0740
Orville L. Reed, III (#0023522)
oreed@stark-knoll.com
David P. Bertsch (#0023517)
dbertsch@stark-knoll.com
Stark & Knoll Co., L.P.A.
3475 Ridgewood Rd.
Akron, OH 44333
Telephone: (330) 376-3300
Telefax: (330) 376-6237
Attorneys for Plaintiff,
Summa Akron City and St. Thomas Hospitals
4
Sandra Kurt, Summit County Clerk of Courts
CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed electronically on the 25th day of
March, 2016. Notice of this filing will be sent by operation of the Court’s electronic filing
system to all parties. Parties may access this filing through the Court’s system.
/s/Thomas R. Lucchesi
Thomas R. Lucchesi
Sandra Kurt, Summit County Clerk of Courts
Preview
CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 1 of 5 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO SUMMA HEALTH SYSTEM f/k/a ) Case No.: CV-2015-02-0919 SUMMA AKRON CITY AND ST. ) THOMAS HOSPITALS ) Judge Lynne S. Callahan ) Plaintiff, ) ) SUMMA’S REPLY vs. ) MEMORANDUM IN SUPPORT OF ) MOTION TO COMPEL WESTERN RESERVE HOSPITAL ) DEPOSITIONS PARTNERS, LLC, et al. ) ) Defendants. WRHP and the Hospital assert that Summa should not be able to take the deposition of Dr. Robert Kent (both individually and as WRHP’s Rule 30(B)(5) representative) because Summa unilaterally cancelled Dr. Kent’s deposition on February 26, 2016 without WRHP counsel’s authorization or agreement. Summa did not unilaterally cancel the deposition. On Friday morning February 26, 2016, Summa counsel Thomas Lucchesi sent defense counsel an email stating: At the present time, the parties have noticed a number of depositions for Monday, February 29th – Dr. Malone, Dr. Kent and Rule 30B5s of WRH, WRHP, Unity and Premier. Please be advised that, for a number of reasons including but not limited to attorney and witness availability, the incomplete production of documents, and the various discovery motions pending before the Court, it is our understanding that none of these depositions will proceed on Monday, but will be rescheduled to a later date. (Exhibit “G” to WRHP’s Response to Motion to Compel.) This email was prompted by the objection of the Hospital’s counsel John Hill that he would move for a protective order to prevent all the depositions noticed for February 29, 2016 unless counsel agreed to reschedule them to a later date: Sandra Kurt, Summit County Clerk of Courts CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 2 of 5 It appears that virtually all of the currently “scheduled” depositions were unilaterally set, both by WRHP and Summa, on the dates that everyone knew I would be out of the country. From my perspective, this is not feasible. We selected numerous dates on which everyone was available. Trying to be cooperative, I also gave the dates I was out of the country but on the condition that I’d be given veto rights for important depositions I had to attend. Now we’re unilaterally scheduling Tom O’Neil, Erik Steele and Mr. Emig (my expert!) for the date I’m out of the country. And Dr. Malone and Dr. Kent set for the same day [February 29, 2016], despite everyone acknowledging they are key witnesses who will need most of the day. (Emphasis added.) *** I have no choice but to move the court for a protective order on these depositions, unless something else can be worked out. I’m just providing notice of that. (John Hill February 19, 2016 email, Exhibit “D” to WRHP’s response to Summa’s Motion to Compel.) Defendants claim that counsel did not reach any understanding to reset the February 29 depositions. But if either Attorney Davis or Attorney Hill disputed Attorney Lucchesi’s February 26 email to this effect and intended to produce Dr. Kent on February 29, they should have responded to inform him of that fact. Alternatively, they could have responded to Attorney Lucchesi’s February 27 email requesting a conference call to discuss “the timing and scheduling of . . . depositions.” (Exhibit “5” to Summa’s Motion to Compel.) Instead, both WRHP and the Hospital remained silent and waited until March 1 to dispute Summa’s right to depose Dr. Kent.1 If defense counsel had replied to either of Summa’s emails prior to February 29 that they did not 1 WRHP points out that when Attorney Davis stated in early March that he would not produce Dr. Kent for deposition, Attorney Lucchesi replied this was “not unexpected.” Attorney Davis’s refusal to produce Dr. Kent for deposition is “not unexpected” because it is in keeping with Attorney Davis’s history of frustrating the discovery in this case. 2 Sandra Kurt, Summit County Clerk of Courts CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 3 of 5 understand or agree to reset the depositions, then the noticed depositions for February 29, 2016 would necessarily have gone forward on that date.2 Defendants should not be permitted to mislead Summa’s counsel through silence and penalize Summa for not requiring the Hospital’s counsel to file a motion for protective order— the very filing of which would have prevented the February 29 scheduled depositions from proceeding. WRHP and the Hospital should not be rewarded for such gamesmanship. Finally, as for Diane Burns, the Hospital argues that Summa was wrong to schedule her deposition while Attorney Hill was on vacation. In fact, Attorney Hill made clear that only certain depositions—Dr. Kent’s, Dr. Malone’s, and the appraisers’—could not go forward without him. Indeed, he specifically offered to make coverage available for Diane Burns’s deposition while he was out of the country (Exhibit “2” to Summa’s Motion to Compel), and all counsel agreed following Mark Bosko’s deposition on February 23 that Ms. Burns’s deposition would proceed two days later. Itwas not until the afternoon of February 24 that the Hospital changed its mind and informed Summa’s counsel Ms. Burns’s deposition was being cancelled. (Exhibit “3” to Summa’s Motion to Compel.) Summa gave Hospital counsel the courtesy of not requiring a motion for protective order provided they agree to reschedule Ms. Burns’s deposition (Id.), and again Hospital counsel remained silent until the day after the close of discovery deadline. For these reasons, Summa’s motion to compel should be granted. 2 Defendants argue that Dr. Kent’s deposition should not move forward because he already was deposed in May 2015. In fact, the parties had agreed that his May deposition would be limited only to those issues relevant to the preliminary injunction motion then pending. Moreover, as the Court is aware, the claims and issues in this case have expanded since then. 3 Sandra Kurt, Summit County Clerk of Courts CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 4 of 5 Respectfully submitted, /s/Thomas R. Lucchesi Thomas R. Lucchesi (#0025790) tlucchesi@bakerlaw.com Scott C. Holbrook (#0073110) sholbrook@bakerlaw.com Baker & Hostetler, LLC 3200 PNC Center 1900 E. Ninth Street Cleveland, OH 44114 Phone: (216) 861-7672 Fax: (216) 696-0740 Orville L. Reed, III (#0023522) oreed@stark-knoll.com David P. Bertsch (#0023517) dbertsch@stark-knoll.com Stark & Knoll Co., L.P.A. 3475 Ridgewood Rd. Akron, OH 44333 Telephone: (330) 376-3300 Telefax: (330) 376-6237 Attorneys for Plaintiff, Summa Akron City and St. Thomas Hospitals 4 Sandra Kurt, Summit County Clerk of Courts CV-2015-02-0919 REPL 03/25/2016 14:42:27 PM CALLAHAN, LYNNE S. Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically on the 25th day of March, 2016. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties. Parties may access this filing through the Court’s system. /s/Thomas R. Lucchesi Thomas R. Lucchesi Sandra Kurt, Summit County Clerk of Courts