Preview
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
REPLY BRIEF
October 31,2023 09:06
By: MICHAEL R. STAVNICKY 0063726
Confirmation Nbr. 3004445
BRIAN COLL CV 23 983915
vs.
Judge: MICHAEL J. RUSSO
DAVID NIEDERST, ET AL.
Pages Filed: 9
Electronically Filed 10/31/2023 09:06 / BRIEF / CV 23 983915 / Confirmation Nbr. 3004445 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
BRIAN COLL ) Case No: CV-23-983915
)
Plaintiff,
) JUDGE TIM MCGINTY
VS. )
)
DAVID NIEDERST, et al. )
)
Defendants. )
REPLY BRIEF
MOTION TO SHOW CAUSE
Plaintiff, by and through his undersigned attorneys, hereby files this Reply in Support of
its Motion to Show Cause against third party witnesses NM Residential and Nied Capital.
II. LAW AND ARGUMENT
A. BACKGROUND
On or about August 28, 2023, Plaintiff issued subpoenas to NM Residential and Nied
Capital. See Motion Exhibits “1” and “2.” These subpoenas were issued to determine Defendant
David Niederst’s involvement therein, the source of the funding used for his alleged loans to
Plaintiffs companies and the interplay between those entities and Defendants’ involvement with
Plaintiff. These subpoenas were also issued to determine communications by those entities with
David Niederst regarding Plaintiff and his companies. These witnesses have failed to produce any
records or documents whatsoever. These witnesses do not claim some privilege precludes
production - they just do not want to produce any information.
-1 -
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
While Defendants claim that these witnesses have nothing to do with this matter, the
Court should note that it is the exact same attorneys representing the thirdparty witnesses -
who also represent the Defendants in this lawsuit. If the witnesses are disinterested third
parties, with no involvement with this matter or David Niederst, why are David Niederst’s
attorneys filing briefs on behalf of these third-party witnesses. These witnesses, David Niederst
and these same attorneys (apparently representing everyone) are all part of the same big pot.
These subpoenas are relevant and connected to the disputes in this lawsuit. Despite proper
service of these subpoenas, the witnesses have failed and refused to produce the documents sought.
They objected and refused to produce the requested information claiming no relevance and
involvement by Defendant with his namesake companies, but that is false. The companies were
started by David Niederst and his ownership in them is now through a trust. See Motion Exhibits
“3” and “4.” We have warned the witnesses through counsel that we will be forced to file this
motion. See Motion Exhibit “5.” Not only did we provide notice that we would be forced to file this
Motion, but Plaintiff attempted to work with the witnesses to amicably produce the information.
In the undersigned’s September 22, 2023, letter to the witnesses and Defendant’s attorneys,
we explained that the information sought was “necessary, relevant and pertinent to the claims and
issued in the pending lawsuit... I am more than happy to discuss this matter and a potential
protective order, if you believe it is necessary...” See Motion Exhibit “5.” Despite, Plaintiffs
efforts to work with the witnesses, no records or documents were ever produced. The witnesses
never agreed to a protective order. The witnesses never agreed to produce any information. The
witnesses never agreed to produce anything. Plaintiff is entitled to an order compelling the
production, setting a show cause hearing and for sanctions against the witnesses.
-2-
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
B. ERRONEOUS ARGUMENTS
The witnesses, again represented by the same attorneys as the Defendants, make a series of
inaccurate and erroneous arguments. The witnesses claim that the information (in their mind) is not
relevant, but that is not a proper basis to object. Civil Rule 34(C) governs discovery requests for the
production of documents from nonparties. It states, that “[sjubject to the scope of discovery
provisions of Civ.R. 26(B) and 45(F), a person not a party to the action may be compelled to
produce documents, electronically stored information or tangible things or to submit to an
inspection as provided in Civ. R. 45.” Thus, a subpoena duces tecum issued to a nonparty pursuant
to Civ.R. 45 is subject to the scope of discovery as defined by Civ.R. 26(B).5. Civil Rule 26
permits “broad discovery.” Molnar v. Margaret W. Wong & Assocs. Co., L.P. A., Sth Dist.
Cuyahoga No. 109440,2021-Ohio-1402,2021 WL 1575218, citing Esparza v. Klocker, 2015-Ohio-
110, 27 N.E.3d 23, 23 (Sth Dist.). Parties 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,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be admissible in
evidence to be discoverable. Civil Rule 26.
Simply because documents are “private” or “confidential” does not mean they are not
discoverable. Such documents are discoverable if “relevant to any party's claim or defense.” Civ.R.
26(B)(1); Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Sth Dist. Cuyahoga No. 97114,
2012-Ohio-493, 2012 WL 425871, at 9-13. In Tisco, the 8th District held that the trial court did
not abuse its discretion in denying nonparty's motions to quash subpoenas duces tecum issued to
-3-
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
banks to obtain nonparty's financial documents because the nonparty's financial documents were
relevant in action against company of which nonparty was the former sole principal and were
discoverable under Civ.R. 26 and 45). Similarly, in Garver, the trial court did not abuse its
discretion in ordering the production of parties’ tax returns given the broad scope of discovery and
the reasonable likelihood that those tax returns could lead to the discovery of admissible evidence.
Garver Road Invest., L.L.C. v. Diversapack of Monroe, L.L.C., 2014 WL 4064996. In Hart v.
Alamo Rent a Car, 195 Ohio App.Sd 167,173,2011-Ohio-4099, 959 N.E.2d 15, 13-17 (Sth Dist.),
the Sth District Court of Appeals held that the trial court did not abuse its discretion in ordering
disclosure of nonparty's social security number subject to confidentiality agreement. Here, the
information must be produced.
While third party witnesses claim that Defendant David Niedrest has nothing to do with
these companies that is simply false. David Niedrest founded NM Residential and Nied Capital.
They are named after him. The fact that Defendant now wants to distance himself from his
companies in an effort to avoid discovery is simply gamesmanship. The fact that David Niederst
uses trusts and holdings companies to hold his ownership does not negate his involvement. Civ.R.
26 permits “broad discovery.” Molnar at 21, citing Esparza v. Klocker, 2015-Ohio-l 10, 27 N.E.3d
23, H 23 (Sth Dist.). Moreover, as the Court knows, information within the scope of discovery need
not be admissible in evidence to be discoverable. Civil Rule 26. Thus, this information must be
produced.
Next, third-party witness, represented by the same attorneys as Defendants, claim that
“maybe” the subpoenas were not served because the backs are blank. Such an argument is
laughable. The backs of the subpoenas are initially blank because they are mailed out certified mail
in accordance with Civil Rule 45. One cannot fill out the back of a subpoena before its service is
-4-
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
completed. Clearly, the third-party witnesses were served as they responded to the subpoenas with
objection letters. Clearly, the third-party witnesses were served because they filed a brief in
opposition to the motion to show cause. As the third parties and their attorneys know, they were
properly served. The certified mail was signed for and the signatures are attached hereto. See
Exhibits 1” and “2.” Service was proper and perfected.
Finally, as set forth above, Plaintiff did work to resolve this matter. We asked the third
parties to discuss the matter. We offered the third parties a protective order. In the undersigned’s
September 22, 2023, letter to the witnesses, and Defendant’s, attorneys, we explained that the
information sought was “necessary, relevant and pertinent to the claims and issued in the pending
lawsuit. ..lam more than happy to discuss this matter and a potential protective order, if you
believe it is necessary...” See Motion Exhibit “5.” Despite, Plaintiffs efforts to work with the
witnesses, no records or documents were ever produced.
Again, there is no question that the control and regulation of the discovery process is within
the discretion of the trial court. Stefawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio
App.3d 78. The Court of Appeals has stated in the past that it “sternly disapproves of tactics
which disrupt or withhold discovery.” Gravill v. Parkhurst (1985), 27 Ohio App.3d 100, 104.
Pursuant to Civil Rule 45, Plaintiff is entitled to an order compelling the production of the
documents, ordering them to appear and show cause as to why they should not be held in
contempt of court. Courts have inherent authority that has existed since the very beginning of
the common law to compel obedience of their lawfully issued orders. Cramer v. Petrie (1994),
70 Ohio St.3d. 131.
The witnesses have been served, are aware of the subpoena and refuse to comply with a
Court order. The witnesses must be compelled to produce the information and a show cause
-5-
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
hearing should be set. As the Court knows under Rule 45(E) sanctions should be awarded in this
matter against the witnesses.
Failure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena
issued. A subpoenaed person or that person’s attorney who frivolously resists
discovery under this rule may be required by the court to pay the reasonable
expenses, including reasonable attorney's fees, of the party seeking the
discovery.
Plaintiff has attempted to cooperate with the witnesses, including offering a protective order if
they saw fit. See Motion Exhibit “5.” We have warned the witness that we would be forced to
file this motion. See Motion Exhibit “5.” The witnesses are simply refusing to produce the
documents under the guise of relevance. However, that is not a proper basis to object to
discovery. As the controlling 8th District holds, “Civ.R. 26(B)(1) also provides for discovery of
information “reasonably calculated to lead to the discovery of admissible evidence.” Tschantz v.
Ferguson, 97 Ohio App.3d 693 (1994). The test for relevancy under Civ.R. 26(B)(1) “is much
broader than the test to be utilized at trial. It is only irrelevant by the discovery test when the
information sought will not reasonably lead to the discovery of admissible evidence.” Id.;
Icenhower v. Icenhower (Aug. 14, 1975), Franklin App. No. 75AP-93, unreported, at 2; see,
also, State ex rel. Fisher v. Rose Chevrolet (1992), 82 Ohio App.3d 520, 523, 612 N.E.2d 782,
784. When a witnesses’ sole objection in seeking the protective order is a generalized statement
that all of the requested discovery is irrelevant - it is insufficient. Sabitov v. Graines, \T1 Ohio
App.3d 451 (8th Dist. 2008). Plaintiff requests that the witnesses be ordered to produce the
documents, that a show cause hearing be set and that the witnesses be sanctioned, including an
award of attorneys’ fees, costs and expenses.
-6-
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
III. CONCLUSION
For the foregoing reasons, Plaintiff requests that the Court order the production of the
subpoenaed documents appearance and set a show cause hearing. Additionally, Plaintiff requests
an award of all costs and expenses incurred in seeking the production of the documents, filing
this motion and seeking to obtain this information.
Respectfully submitted,
Is!Michael R. Stavnickv________
Michael R. Stavnicky
(Reg. No. 0063726)
Singerman, Mills, Desberg & Kauntz Co., L.P. A.
3333 Richmond Road, #370
Beachwood, Ohio 44122
(216) 292-5807
mstavnicky@smdklaw.com
Attorneys for Plaintff
CERTIFICATE OF SERVICE
A copy of the foregoing was served on this 31st day of October 2023 by email, regular mail
or electronic court service upon all parties or attorney of record.
/s/ Michael R. Stavnickv
Attorneys for Plaintiff
Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH
I
1 SENDER: COMPLETE THIS SECTION 1 COMPLETE THIS SECTION ON DELIVERY
EDDh 9TFP 1000 D5TE D2Di
A. Signature JI
■ Complete items 1, 2, and 3. * ^ET^gent
■ Print your name and address on the reverse
Addressee
so that we can return the card to you.
B. .Rehelved by (Printed Name) C. Date of Delivery 1
■ Attach this card to the back of the mailpiece,
or on the front if space permits. M'c
1. Article Addressed to: D. Is delivery address different from item 1 ? Yes
If YES, enter delivery address below: (
NIED CAPITAL, LLC
21400 Lorain Road
Fairview Park, Ohio 44126 •1
-1
1
lllllllllllllllllllllllllllllllilllllllll
3, Service Type Priority Mall Express®
Adult Signature Registered Mail™
9 Adult Signature Restricted Delivery Registered Mail Restricted
^Certified Mail® Delivery
9590 94025249 0265 7754 98 Certified Mall Restricted Delivery Signature Confirmation™
Collect on Delivery Signature Confirmation
Collect on Delivery Restricted Delivery Restricted Delivery
2. Article Number (Transfer from service label)
n- --- -i Mal|
_ 7DE0 31L0'0D01" ams 4D03 Mail Restricted Delivery
!O)
■ PS Form 3811, July 2020 PSN 7530-02-000-9053 Domestic Return Receipt .
RETURN RECEIPT REQUESTED
NIED CAPITAL, LLC
21400 Lorain Road
Fairview Park, Ohio 44126
Re: Brian Coll v. David Niederst, et al.
Cuyahoga County Court of Common Pleas, Case No. CV-23-983915
Dear Sir/Madam:
Enclosed please find a Subpoena in the above-referenced matter. Should you
have any questions, please feel free to contact Mr. Michael Stavnicky at the address and
phone number indicated below.
Very truly yours,
CLo-lAZb
Hope Cloud
Litigation Paralegal
Enclosures
cc: David Niederst
Perry Stancato
Stillwater Seven LLC
Brian Coll
3333 Richmond Road, Suite 370 I Cleveland, Ohio 44122 I p: (216) 292-5807 I f: (216) 292-5867 I w: smdklaw.com
SENDER: COMFLETETrllS SECTION I COMPLETE THIS SECTION ON DELIVERY
nTnh
■ Complete items 1,2, and 3.
■ Print your name and address on the reverse
so that we can return the card to you.
B
ived-by (Printed Name)
fc&XJIsffl.z? | C. Date of Delivery
PTfiR
■ Attach this card to the back of the mailpiece,
or on the front if space permits.________
1. Article Addressed to: D. is delivery address different from Item 1 ? £1 Yes
If YES, enter delivery address below: ^Tlo
NM RESIDENTIAL, LLC
Tnnn
21400 Lorain Road
Fairview Park, Ohio 44126
rmr
3. Service Type □ Priority Mail Express®
n?n?
□ Adult Signature □ Registered Mail™
□Adult Signature Restricted Delivery □ Registered Mail Restricted
^Certified Mail® Delivery
□ Certified Mail Restricted Delivery □ Signature Confirmation™
□ Collect on Delivery □ Signature Confirmation
2. Article Number (Transfer from service label) □ Collect on Delivery Restricted Delivery Restricted Delivery
“' Vail
7D2D 31LD D0D1 BMlfl HDltl Zall Restricted Delivery
-JO)
Domestic Return Receipt ;
RETURN RECEIPT REQUESTED
NM RESIDENTIAL, LLC
21400 Lorain Road
Fairview Park, Ohio 44126
Re: Brian Coll v. David Niederst, et al.
Cuyahoga County Court of Common Pleas. Case No. CV-23-983915
Dear Sir/Madam:
Enclosed please find a Subpoena in the above-referenced matter. Should you
have any questions, please feel free to contact Mr. Michael Stavnicky at the address and
phone number indicated below.
Very truly yours,
Hope Cloud
Litigation Paralegal
Enclosures
cc: David Niederst
Perry Stancato
Stillwater Seven LLC
Brian Coll
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas REPLY BRIEF October 31,2023 09:06 By: MICHAEL R. STAVNICKY 0063726 Confirmation Nbr. 3004445 BRIAN COLL CV 23 983915 vs. Judge: MICHAEL J. RUSSO DAVID NIEDERST, ET AL. Pages Filed: 9 Electronically Filed 10/31/2023 09:06 / BRIEF / CV 23 983915 / Confirmation Nbr. 3004445 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO BRIAN COLL ) Case No: CV-23-983915 ) Plaintiff, ) JUDGE TIM MCGINTY VS. ) ) DAVID NIEDERST, et al. ) ) Defendants. ) REPLY BRIEF MOTION TO SHOW CAUSE Plaintiff, by and through his undersigned attorneys, hereby files this Reply in Support of its Motion to Show Cause against third party witnesses NM Residential and Nied Capital. II. LAW AND ARGUMENT A. BACKGROUND On or about August 28, 2023, Plaintiff issued subpoenas to NM Residential and Nied Capital. See Motion Exhibits “1” and “2.” These subpoenas were issued to determine Defendant David Niederst’s involvement therein, the source of the funding used for his alleged loans to Plaintiffs companies and the interplay between those entities and Defendants’ involvement with Plaintiff. These subpoenas were also issued to determine communications by those entities with David Niederst regarding Plaintiff and his companies. These witnesses have failed to produce any records or documents whatsoever. These witnesses do not claim some privilege precludes production - they just do not want to produce any information. -1 - Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH While Defendants claim that these witnesses have nothing to do with this matter, the Court should note that it is the exact same attorneys representing the thirdparty witnesses - who also represent the Defendants in this lawsuit. If the witnesses are disinterested third parties, with no involvement with this matter or David Niederst, why are David Niederst’s attorneys filing briefs on behalf of these third-party witnesses. These witnesses, David Niederst and these same attorneys (apparently representing everyone) are all part of the same big pot. These subpoenas are relevant and connected to the disputes in this lawsuit. Despite proper service of these subpoenas, the witnesses have failed and refused to produce the documents sought. They objected and refused to produce the requested information claiming no relevance and involvement by Defendant with his namesake companies, but that is false. The companies were started by David Niederst and his ownership in them is now through a trust. See Motion Exhibits “3” and “4.” We have warned the witnesses through counsel that we will be forced to file this motion. See Motion Exhibit “5.” Not only did we provide notice that we would be forced to file this Motion, but Plaintiff attempted to work with the witnesses to amicably produce the information. In the undersigned’s September 22, 2023, letter to the witnesses and Defendant’s attorneys, we explained that the information sought was “necessary, relevant and pertinent to the claims and issued in the pending lawsuit... I am more than happy to discuss this matter and a potential protective order, if you believe it is necessary...” See Motion Exhibit “5.” Despite, Plaintiffs efforts to work with the witnesses, no records or documents were ever produced. The witnesses never agreed to a protective order. The witnesses never agreed to produce any information. The witnesses never agreed to produce anything. Plaintiff is entitled to an order compelling the production, setting a show cause hearing and for sanctions against the witnesses. -2- Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH B. ERRONEOUS ARGUMENTS The witnesses, again represented by the same attorneys as the Defendants, make a series of inaccurate and erroneous arguments. The witnesses claim that the information (in their mind) is not relevant, but that is not a proper basis to object. Civil Rule 34(C) governs discovery requests for the production of documents from nonparties. It states, that “[sjubject to the scope of discovery provisions of Civ.R. 26(B) and 45(F), a person not a party to the action may be compelled to produce documents, electronically stored information or tangible things or to submit to an inspection as provided in Civ. R. 45.” Thus, a subpoena duces tecum issued to a nonparty pursuant to Civ.R. 45 is subject to the scope of discovery as defined by Civ.R. 26(B).5. Civil Rule 26 permits “broad discovery.” Molnar v. Margaret W. Wong & Assocs. Co., L.P. A., Sth Dist. Cuyahoga No. 109440,2021-Ohio-1402,2021 WL 1575218, citing Esparza v. Klocker, 2015-Ohio- 110, 27 N.E.3d 23, 23 (Sth Dist.). Parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Civil Rule 26. Simply because documents are “private” or “confidential” does not mean they are not discoverable. Such documents are discoverable if “relevant to any party's claim or defense.” Civ.R. 26(B)(1); Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Sth Dist. Cuyahoga No. 97114, 2012-Ohio-493, 2012 WL 425871, at 9-13. In Tisco, the 8th District held that the trial court did not abuse its discretion in denying nonparty's motions to quash subpoenas duces tecum issued to -3- Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH banks to obtain nonparty's financial documents because the nonparty's financial documents were relevant in action against company of which nonparty was the former sole principal and were discoverable under Civ.R. 26 and 45). Similarly, in Garver, the trial court did not abuse its discretion in ordering the production of parties’ tax returns given the broad scope of discovery and the reasonable likelihood that those tax returns could lead to the discovery of admissible evidence. Garver Road Invest., L.L.C. v. Diversapack of Monroe, L.L.C., 2014 WL 4064996. In Hart v. Alamo Rent a Car, 195 Ohio App.Sd 167,173,2011-Ohio-4099, 959 N.E.2d 15, 13-17 (Sth Dist.), the Sth District Court of Appeals held that the trial court did not abuse its discretion in ordering disclosure of nonparty's social security number subject to confidentiality agreement. Here, the information must be produced. While third party witnesses claim that Defendant David Niedrest has nothing to do with these companies that is simply false. David Niedrest founded NM Residential and Nied Capital. They are named after him. The fact that Defendant now wants to distance himself from his companies in an effort to avoid discovery is simply gamesmanship. The fact that David Niederst uses trusts and holdings companies to hold his ownership does not negate his involvement. Civ.R. 26 permits “broad discovery.” Molnar at 21, citing Esparza v. Klocker, 2015-Ohio-l 10, 27 N.E.3d 23, H 23 (Sth Dist.). Moreover, as the Court knows, information within the scope of discovery need not be admissible in evidence to be discoverable. Civil Rule 26. Thus, this information must be produced. Next, third-party witness, represented by the same attorneys as Defendants, claim that “maybe” the subpoenas were not served because the backs are blank. Such an argument is laughable. The backs of the subpoenas are initially blank because they are mailed out certified mail in accordance with Civil Rule 45. One cannot fill out the back of a subpoena before its service is -4- Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH completed. Clearly, the third-party witnesses were served as they responded to the subpoenas with objection letters. Clearly, the third-party witnesses were served because they filed a brief in opposition to the motion to show cause. As the third parties and their attorneys know, they were properly served. The certified mail was signed for and the signatures are attached hereto. See Exhibits 1” and “2.” Service was proper and perfected. Finally, as set forth above, Plaintiff did work to resolve this matter. We asked the third parties to discuss the matter. We offered the third parties a protective order. In the undersigned’s September 22, 2023, letter to the witnesses, and Defendant’s, attorneys, we explained that the information sought was “necessary, relevant and pertinent to the claims and issued in the pending lawsuit. ..lam more than happy to discuss this matter and a potential protective order, if you believe it is necessary...” See Motion Exhibit “5.” Despite, Plaintiffs efforts to work with the witnesses, no records or documents were ever produced. Again, there is no question that the control and regulation of the discovery process is within the discretion of the trial court. Stefawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. The Court of Appeals has stated in the past that it “sternly disapproves of tactics which disrupt or withhold discovery.” Gravill v. Parkhurst (1985), 27 Ohio App.3d 100, 104. Pursuant to Civil Rule 45, Plaintiff is entitled to an order compelling the production of the documents, ordering them to appear and show cause as to why they should not be held in contempt of court. Courts have inherent authority that has existed since the very beginning of the common law to compel obedience of their lawfully issued orders. Cramer v. Petrie (1994), 70 Ohio St.3d. 131. The witnesses have been served, are aware of the subpoena and refuse to comply with a Court order. The witnesses must be compelled to produce the information and a show cause -5- Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH hearing should be set. As the Court knows under Rule 45(E) sanctions should be awarded in this matter against the witnesses. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. A subpoenaed person or that person’s attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney's fees, of the party seeking the discovery. Plaintiff has attempted to cooperate with the witnesses, including offering a protective order if they saw fit. See Motion Exhibit “5.” We have warned the witness that we would be forced to file this motion. See Motion Exhibit “5.” The witnesses are simply refusing to produce the documents under the guise of relevance. However, that is not a proper basis to object to discovery. As the controlling 8th District holds, “Civ.R. 26(B)(1) also provides for discovery of information “reasonably calculated to lead to the discovery of admissible evidence.” Tschantz v. Ferguson, 97 Ohio App.3d 693 (1994). The test for relevancy under Civ.R. 26(B)(1) “is much broader than the test to be utilized at trial. It is only irrelevant by the discovery test when the information sought will not reasonably lead to the discovery of admissible evidence.” Id.; Icenhower v. Icenhower (Aug. 14, 1975), Franklin App. No. 75AP-93, unreported, at 2; see, also, State ex rel. Fisher v. Rose Chevrolet (1992), 82 Ohio App.3d 520, 523, 612 N.E.2d 782, 784. When a witnesses’ sole objection in seeking the protective order is a generalized statement that all of the requested discovery is irrelevant - it is insufficient. Sabitov v. Graines, \T1 Ohio App.3d 451 (8th Dist. 2008). Plaintiff requests that the witnesses be ordered to produce the documents, that a show cause hearing be set and that the witnesses be sanctioned, including an award of attorneys’ fees, costs and expenses. -6- Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH III. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court order the production of the subpoenaed documents appearance and set a show cause hearing. Additionally, Plaintiff requests an award of all costs and expenses incurred in seeking the production of the documents, filing this motion and seeking to obtain this information. Respectfully submitted, Is!Michael R. Stavnickv________ Michael R. Stavnicky (Reg. No. 0063726) Singerman, Mills, Desberg & Kauntz Co., L.P. A. 3333 Richmond Road, #370 Beachwood, Ohio 44122 (216) 292-5807 mstavnicky@smdklaw.com Attorneys for Plaintff CERTIFICATE OF SERVICE A copy of the foregoing was served on this 31st day of October 2023 by email, regular mail or electronic court service upon all parties or attorney of record. /s/ Michael R. Stavnickv Attorneys for Plaintiff Electronical y Filed 10/31/2023 09:06 I BRIEF I CV 23 983915 I Confirmation Nbr. 3004445 I BATCH I 1 SENDER: COMPLETE THIS SECTION 1 COMPLETE THIS SECTION ON DELIVERY EDDh 9TFP 1000 D5TE D2Di A. Signature JI ■ Complete items 1, 2, and 3. * ^ET^gent ■ Print your name and address on the reverse Addressee so that we can return the card to you. B. .Rehelved by (Printed Name) C. Date of Delivery 1 ■ Attach this card to the back of the mailpiece, or on the front if space permits. M'c 1. Article Addressed to: D. Is delivery address different from item 1 ? Yes If YES, enter delivery address below: ( NIED CAPITAL, LLC 21400 Lorain Road Fairview Park, Ohio 44126 •1 -1 1 lllllllllllllllllllllllllllllllilllllllll 3, Service Type Priority Mall Express® Adult Signature Registered Mail™ 9 Adult Signature Restricted Delivery Registered Mail Restricted ^Certified Mail® Delivery 9590 94025249 0265 7754 98 Certified Mall Restricted Delivery Signature Confirmation™ Collect on Delivery Signature Confirmation Collect on Delivery Restricted Delivery Restricted Delivery 2. Article Number (Transfer from service label) n- --- -i Mal| _ 7DE0 31L0'0D01" ams 4D03 Mail Restricted Delivery !O) ■ PS Form 3811, July 2020 PSN 7530-02-000-9053 Domestic Return Receipt . RETURN RECEIPT REQUESTED NIED CAPITAL, LLC 21400 Lorain Road Fairview Park, Ohio 44126 Re: Brian Coll v. David Niederst, et al. Cuyahoga County Court of Common Pleas, Case No. CV-23-983915 Dear Sir/Madam: Enclosed please find a Subpoena in the above-referenced matter. Should you have any questions, please feel free to contact Mr. Michael Stavnicky at the address and phone number indicated below. Very truly yours, CLo-lAZb Hope Cloud Litigation Paralegal Enclosures cc: David Niederst Perry Stancato Stillwater Seven LLC Brian Coll 3333 Richmond Road, Suite 370 I Cleveland, Ohio 44122 I p: (216) 292-5807 I f: (216) 292-5867 I w: smdklaw.com SENDER: COMFLETETrllS SECTION I COMPLETE THIS SECTION ON DELIVERY nTnh ■ Complete items 1,2, and 3. ■ Print your name and address on the reverse so that we can return the card to you. B ived-by (Printed Name) fc&XJIsffl.z? | C. Date of Delivery PTfiR ■ Attach this card to the back of the mailpiece, or on the front if space permits.________ 1. Article Addressed to: D. is delivery address different from Item 1 ? £1 Yes If YES, enter delivery address below: ^Tlo NM RESIDENTIAL, LLC Tnnn 21400 Lorain Road Fairview Park, Ohio 44126 rmr 3. Service Type □ Priority Mail Express® n?n? □ Adult Signature □ Registered Mail™ □Adult Signature Restricted Delivery □ Registered Mail Restricted ^Certified Mail® Delivery □ Certified Mail Restricted Delivery □ Signature Confirmation™ □ Collect on Delivery □ Signature Confirmation 2. Article Number (Transfer from service label) □ Collect on Delivery Restricted Delivery Restricted Delivery “' Vail 7D2D 31LD D0D1 BMlfl HDltl Zall Restricted Delivery -JO) Domestic Return Receipt ; RETURN RECEIPT REQUESTED NM RESIDENTIAL, LLC 21400 Lorain Road Fairview Park, Ohio 44126 Re: Brian Coll v. David Niederst, et al. Cuyahoga County Court of Common Pleas. Case No. CV-23-983915 Dear Sir/Madam: Enclosed please find a Subpoena in the above-referenced matter. Should you have any questions, please feel free to contact Mr. Michael Stavnicky at the address and phone number indicated below. Very truly yours, Hope Cloud Litigation Paralegal Enclosures cc: David Niederst Perry Stancato Stillwater Seven LLC Brian Coll