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Motion No. 5131113
NAILAH K. BYRD
CUYAHOGA COUNTY CEERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
November 14,2023 14:12
By: KEVIN H. CRONIN 0039891
Confirmation Nbr. 3017510
L. BRYAN CARR CV 23 983953
vs.
Judge: NANCY A. FUERST
KEVIN CRONIN
Pages Filed: 5
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953 / Confirmation Nbr. 3017510 / CLKXL
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
L. BRYAN CARR ) CASE NO. CV-23-983953
)
Plaintiff, ) JUDGE NANCY A. FUERST
)
v. ) DEFENDANT CRONIN'S MOTION FOR
) PROTECTIVE ORDER AGAINST PLAINTIFF'S
KEVIN CRONIN ) DISCOVERY
)
Defendant. )
Kevin Cronin files a Motion for a protective order under Ohio Rule of Civil Procedure 26(C)
against Attorney Carr's broad discovery request as contrary to public policy and Ohio law. Carr
filed twenty-eight discovery items, comprised of eight interrogatories, nine request for
admissions and eleven document production requests. The discovery is oppressive and created
undue burdens and expenses for Cronin and is contrary to Supreme Court rulings, as is Attorney
Carr's entire lawsuit.
Rule 26 (C ) provides authority for protective order for good cause, which may include discovery
that is oppressive or causes an undue burden or expense. Sanctions include the denial of the
discovery request:
Upon motion by any party or by the person from whom discovery is sought, and for
good cause shown, the court in which the action is pending may make any order that
justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
Rule 26 (C) Protective orders, Ohio Rules of Civil Procedure
Ohio provides a broad grant of immunity for attorneys, based on the conclusion that public
policy interests favor attorney immunity from the defamation allegation, as they outweigh any
negative impact by parties affected by allegedly defamatory statements of counsel. See Surace
v. Wuliger (1986), 25 Ohio St.3d 229, which follows a series of case, dating back to 1930 [Erie
County Farmers' Insurance Co. v. Creclius (1930), 122 Ohio St 210; Battig v. Forshey (1982)].
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953 / Confirmation Nbr. 3017510 / CLKXL
The immunity operates as a complete prohibition to the Carr lawsuit and discovery. “Thus, we
hold that as a matter of public policy, under the doctrine of absolute privilege in a judicial
proceeding, a claim alleging that a defamatory statement was made in a written pleading does
not state a cause of action where the allegedly defamatory statement bears some reasonable
relation to the judicial proceeding in which it appears.” Surace v. Wuliger 25 Ohio St. 3d
229 (1986). The cases were compiled in the volumes Ohio Jurisprudence as well: “As a matter
of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim
alleging that a defamatory statement was made in a written pleading does not state a cause of
action where the allegedly defamatory statement bears some reasonable relation to the judicial
proceeding in which it appears.” O.Jur 3d Defamation §§ 73, 75.
Rule 26(C ) of the Ohio Rules of Civil Procedure provide that a court may issue a protective
order, including that the discovery not be permitted, based on the public policy violations. The
Surace decisions establishes the good cause basis for Cronin's motion and warrant prohibiting
Carr's discovery request.
A Brief in Support is attached and Incorporated.
Respectfully submitted,
/S Kevin Cronin/
Kevin Cronin, Attorney at Law
The Brown Hoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
216.377.0615
kevin@kevincronin
SERVICE
This Motion for Protection was filed via court portal, with a copy to Attorney L. Bryan Carr on November 14, 2023.
/S Kevin Cronin/_____
Kevin Cronin, Attorney at Law
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 98395#/ Confirmation Nbr. 3017510 / CLKXL
THE DISCOVERY AND THE LIBEL LAWSUIT ARE BARRED AS CONTRARY
TO PUBLIC POLICY AND VIOLATIVE OF THE CAREFUL BALANCING
DESCRIBED BY THE OHIO SUPREME COURT UNDER THE SURACE STANDARD.
The Ohio Rules of Civil Procedure permit a trial court to create a protection order to prohibit
discovery, based on a need to establish the balance described in the Surace case. The
requirements of court and justice, the zealous defense of clients and encouraging the full and
free consideration of the case, support aggressive language and the challenge to these words as
libelous would do more harm than good. The Supreme Court established: “No action will lie for
any defamatory statement made by a party to a court proceeding, in a pleading filed in such
proceeding, where the defamatory statement is material and relevant to the issue."
Surace v. Wuliger 25 Ohio St. 3d 229 (1986).
In K&O Transportation & Logistics, LLC v Robert Perkins (Case No. CV 22964387) Attorney Carr
represented K&O, owners of the house where narcotics appeared to be used and sold.
Defendant Robert Perkins was the neighboring homeowner, suffering threats from tenants and
customers, and was defended by Cronin. Attorney Carr alleges Cronin defamed him in Court
filings by suggesting Attorney Carr was part of the process protecting the residents and
profiteers of the “drug house.” Cronin's court documents further describe two efforts to close
the drug house, one effort that Carr reversed and another that Carr and K&O refused to follow,
all the while continuing to collect rent.
The Ohio Supreme Court identified clear public policy reasons for choosing to accept aggressive
language, including the most basic goal, the need to have wide latitude to discuss “fully and
freely” the merits in assisting the Court to determine the truth in the case at hand and the
imperative of asserting a clint's zealous defense. To determine otherwise would also risk
clogging the Court dockets and risk violation of the code of professional responsibility.
In conclusion, we wish to re-emphasize the public policy considerations underlying the
doctrine of absolute privilege in judicial proceedings in the test we have formulated
today. The most basic goal of our judicial system is to afford litigants the opportunity to
freely and fully discuss all the various aspects of a case in order to assist the court in
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 98395$/ Confirmation Nbr. 3017510 / CLKXL
determining the truth, so that the decision it renders is both fair and just. ... a contrary
rule, in our view, would unduly stifle attorneys from zealously advancing the interests of
their clients in possible violation of the Code of Professional Responsibility, and would
clog court dockets with a multitude of lawsuits based upon alleged defamatory
statements made in other judicial proceedings. The proper balance that must be made
is that which we have set forth today. We believe that the standard requiring that the
alleged defamatory statement bear some reasonable relation to the judicial proceeding
in which it appears is the proper restraint which should be made in order to insure the
free and open discussion of competing interests that is a necessary part of our
adversarial system of justice.
Surace v. Wuliger 25 Ohio St. 3d 229 (1986). (emphasis added)
Carr's expansive discovery request, twenty-eight items in all, are oppressive and create an
undue burden and expense for Cronin, given the absolute bar to proceeding under the Surace
guidance. Ohio rules of Civil Procedure governing discovery permit the Court to offer protection
orders and bar the discovery:
Upon motion by any party or by the person from whom discovery is sought, and for
good cause shown, the court in which the action is pending may make any order that
justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
Rule 26 (C) Protective orders, Ohio Rules of Civil Procedure
With the Surace decision, the Ohio Supreme Court identified that it was willing to accept
aggressive language, provided it was related to the issue addressed, rather than discourage
zealous representation of clients: “Thus, we hold that as a matter of public policy, under the
doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory
statement was made in a written pleading does not state a cause of action where the allegedly
defamatory statement bears some reasonable relation to the judicial proceeding in which it
appears.” Surace v. Wuliger 25 Ohio St. 3d 229 (1986). (emphasis added)
The Court acknowledged that an alternative decision would be far worse, undermining full and
free discussion of the case and the required aggressive client representation on which justice
rests. The Supreme Court expressed that the reliance on trial court discretion provided
sufficient confidence in implementation:
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953/ Confirmation Nbr. 3017510 / CLKXL
On balance, a liberal rule of absolute immunity is the better policy, as it prevents
endless lawsuits because of alleged defamatory statements in prior proceedings.
Sufficient protection from gross abuse of the privilege is provided by the fact that an
objective judge conducts the judicial proceedings and that the judge may hold an
attorney in contempt if his conduct exceeds the bound of legal propriety or may strike
irrelevant, slanderous or libelous matter.
Surace v. Wuliger 25 Ohio St. 3d 229 (1986).
Carr's sweeping discovery request should be barred as it is oppressive and imposes an undue
burden and expense, given the absolute bar to proceeding under the Ohio Supreme Court's
Surace guidance. Further, defendant requests an order of reasonable attorney fees of $1,500
for defending against the barred discovery requests.
Respectfully submitted;
/S Kevin Cronin/
Kevin Cronin, Attorney at Law
The Brown Hoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
216.377.0615
kevin@kevincronin.us
Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953/ Confirmation Nbr. 3017510 / CLKXL
Preview
Motion No. 5131113 NAILAH K. BYRD CUYAHOGA COUNTY CEERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... November 14,2023 14:12 By: KEVIN H. CRONIN 0039891 Confirmation Nbr. 3017510 L. BRYAN CARR CV 23 983953 vs. Judge: NANCY A. FUERST KEVIN CRONIN Pages Filed: 5 Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953 / Confirmation Nbr. 3017510 / CLKXL IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO L. BRYAN CARR ) CASE NO. CV-23-983953 ) Plaintiff, ) JUDGE NANCY A. FUERST ) v. ) DEFENDANT CRONIN'S MOTION FOR ) PROTECTIVE ORDER AGAINST PLAINTIFF'S KEVIN CRONIN ) DISCOVERY ) Defendant. ) Kevin Cronin files a Motion for a protective order under Ohio Rule of Civil Procedure 26(C) against Attorney Carr's broad discovery request as contrary to public policy and Ohio law. Carr filed twenty-eight discovery items, comprised of eight interrogatories, nine request for admissions and eleven document production requests. The discovery is oppressive and created undue burdens and expenses for Cronin and is contrary to Supreme Court rulings, as is Attorney Carr's entire lawsuit. Rule 26 (C ) provides authority for protective order for good cause, which may include discovery that is oppressive or causes an undue burden or expense. Sanctions include the denial of the discovery request: Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had; Rule 26 (C) Protective orders, Ohio Rules of Civil Procedure Ohio provides a broad grant of immunity for attorneys, based on the conclusion that public policy interests favor attorney immunity from the defamation allegation, as they outweigh any negative impact by parties affected by allegedly defamatory statements of counsel. See Surace v. Wuliger (1986), 25 Ohio St.3d 229, which follows a series of case, dating back to 1930 [Erie County Farmers' Insurance Co. v. Creclius (1930), 122 Ohio St 210; Battig v. Forshey (1982)]. Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953 / Confirmation Nbr. 3017510 / CLKXL The immunity operates as a complete prohibition to the Carr lawsuit and discovery. “Thus, we hold that as a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears.” Surace v. Wuliger 25 Ohio St. 3d 229 (1986). The cases were compiled in the volumes Ohio Jurisprudence as well: “As a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears.” O.Jur 3d Defamation §§ 73, 75. Rule 26(C ) of the Ohio Rules of Civil Procedure provide that a court may issue a protective order, including that the discovery not be permitted, based on the public policy violations. The Surace decisions establishes the good cause basis for Cronin's motion and warrant prohibiting Carr's discovery request. A Brief in Support is attached and Incorporated. Respectfully submitted, /S Kevin Cronin/ Kevin Cronin, Attorney at Law The Brown Hoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 216.377.0615 kevin@kevincronin SERVICE This Motion for Protection was filed via court portal, with a copy to Attorney L. Bryan Carr on November 14, 2023. /S Kevin Cronin/_____ Kevin Cronin, Attorney at Law Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 98395#/ Confirmation Nbr. 3017510 / CLKXL THE DISCOVERY AND THE LIBEL LAWSUIT ARE BARRED AS CONTRARY TO PUBLIC POLICY AND VIOLATIVE OF THE CAREFUL BALANCING DESCRIBED BY THE OHIO SUPREME COURT UNDER THE SURACE STANDARD. The Ohio Rules of Civil Procedure permit a trial court to create a protection order to prohibit discovery, based on a need to establish the balance described in the Surace case. The requirements of court and justice, the zealous defense of clients and encouraging the full and free consideration of the case, support aggressive language and the challenge to these words as libelous would do more harm than good. The Supreme Court established: “No action will lie for any defamatory statement made by a party to a court proceeding, in a pleading filed in such proceeding, where the defamatory statement is material and relevant to the issue." Surace v. Wuliger 25 Ohio St. 3d 229 (1986). In K&O Transportation & Logistics, LLC v Robert Perkins (Case No. CV 22964387) Attorney Carr represented K&O, owners of the house where narcotics appeared to be used and sold. Defendant Robert Perkins was the neighboring homeowner, suffering threats from tenants and customers, and was defended by Cronin. Attorney Carr alleges Cronin defamed him in Court filings by suggesting Attorney Carr was part of the process protecting the residents and profiteers of the “drug house.” Cronin's court documents further describe two efforts to close the drug house, one effort that Carr reversed and another that Carr and K&O refused to follow, all the while continuing to collect rent. The Ohio Supreme Court identified clear public policy reasons for choosing to accept aggressive language, including the most basic goal, the need to have wide latitude to discuss “fully and freely” the merits in assisting the Court to determine the truth in the case at hand and the imperative of asserting a clint's zealous defense. To determine otherwise would also risk clogging the Court dockets and risk violation of the code of professional responsibility. In conclusion, we wish to re-emphasize the public policy considerations underlying the doctrine of absolute privilege in judicial proceedings in the test we have formulated today. The most basic goal of our judicial system is to afford litigants the opportunity to freely and fully discuss all the various aspects of a case in order to assist the court in Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 98395$/ Confirmation Nbr. 3017510 / CLKXL determining the truth, so that the decision it renders is both fair and just. ... a contrary rule, in our view, would unduly stifle attorneys from zealously advancing the interests of their clients in possible violation of the Code of Professional Responsibility, and would clog court dockets with a multitude of lawsuits based upon alleged defamatory statements made in other judicial proceedings. The proper balance that must be made is that which we have set forth today. We believe that the standard requiring that the alleged defamatory statement bear some reasonable relation to the judicial proceeding in which it appears is the proper restraint which should be made in order to insure the free and open discussion of competing interests that is a necessary part of our adversarial system of justice. Surace v. Wuliger 25 Ohio St. 3d 229 (1986). (emphasis added) Carr's expansive discovery request, twenty-eight items in all, are oppressive and create an undue burden and expense for Cronin, given the absolute bar to proceeding under the Surace guidance. Ohio rules of Civil Procedure governing discovery permit the Court to offer protection orders and bar the discovery: Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had; Rule 26 (C) Protective orders, Ohio Rules of Civil Procedure With the Surace decision, the Ohio Supreme Court identified that it was willing to accept aggressive language, provided it was related to the issue addressed, rather than discourage zealous representation of clients: “Thus, we hold that as a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears.” Surace v. Wuliger 25 Ohio St. 3d 229 (1986). (emphasis added) The Court acknowledged that an alternative decision would be far worse, undermining full and free discussion of the case and the required aggressive client representation on which justice rests. The Supreme Court expressed that the reliance on trial court discretion provided sufficient confidence in implementation: Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953/ Confirmation Nbr. 3017510 / CLKXL On balance, a liberal rule of absolute immunity is the better policy, as it prevents endless lawsuits because of alleged defamatory statements in prior proceedings. Sufficient protection from gross abuse of the privilege is provided by the fact that an objective judge conducts the judicial proceedings and that the judge may hold an attorney in contempt if his conduct exceeds the bound of legal propriety or may strike irrelevant, slanderous or libelous matter. Surace v. Wuliger 25 Ohio St. 3d 229 (1986). Carr's sweeping discovery request should be barred as it is oppressive and imposes an undue burden and expense, given the absolute bar to proceeding under the Ohio Supreme Court's Surace guidance. Further, defendant requests an order of reasonable attorney fees of $1,500 for defending against the barred discovery requests. Respectfully submitted; /S Kevin Cronin/ Kevin Cronin, Attorney at Law The Brown Hoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 216.377.0615 kevin@kevincronin.us Electronically Filed 11/14/2023 14:12 / MOTION / CV 23 983953/ Confirmation Nbr. 3017510 / CLKXL