Preview
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
NOTICE OF
October 31,2023 16:53
By: EDMUND W. SEARBY 0067455
Confirmation Nbr. 3005601
CLIMBINGBEAR LLC, ET AL. CV 23 975444
vs.
Judge: NANCY A. FUERST
NEXT LAP HOLDINGS, LLC, ET AL.
Pages Filed: 72
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
CLIMBINGBEAR LLC, ET AL. ) CASE NO. CV-23-975444
)
Plaintiffs, ) JUDGE NANCY A. FUERST
) MAGISTRATE JIM L. JACKSON
v. )
) NOTICE OF FILING EXHIBITS
NEXT LAP HOLDINGS, LLC, ET AL. ) TO MOTION TO EXTEND FACT
) DISCOVERY DEADLINE AND
Defendants. ) INCORPORATED
) MEMORANDUM OF LAW
)
Plaintiffs ClimbingBear, LLC and Edmund W. Searby hereby respectfully
submits the Exhibits in support of Motion to Extend Fact Discovery Deadline and
Incorporated Memorandum of Law contemporaneously filed herewith.
Respectfully submitted,
/s/ Edmund W. Searby__________
Edmund W. Searby (0067455)
Porter Wright Morris & Arthur llp
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
(216) 443-9000 / Fax (216) 443-9011
esearby@porterwright.com
James D. Curphey (0015832)
Ryan P. Sherman (0075081)
Porter Wright Morris & Arthur llp
41 S. High Street, Suite 2900
Columbus, OH 43215
(614) 227-2184 / Fax (614) 227-2100
jcurphey@porterwright.com
rsherman@porterwright.com
Attorney for Plaintiffs ClimbingBear, LLC,
and Edmund W. Searby
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CERTIFICATE OF SERVICE
The foregoing Plaintiffs’ Notice of Filing Exhibits to Motion To Extend Fact
Discovery Deadline And Incorporated Memorandum Of Law was served this 31st
day of October, 2023 via email upon:
John P. Slagter
Anthony R. Vacanti
Danielle M. Easton
TUCKER ELLIS LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
john.slagter@tuckerellis.com
tony.vacanti@tuckerellis.com
danielle. e aston@tuckerellis .com
Attorneys far Defendants Next Lap Holdings, LLC,
Ronald C. Hess, Jr., Ronald C. Hess, Sr., and Janet
Hess
Dolores P. Garcia
Sara S. Dorland
ULMER & BERNE LLP
1660 W. 2nd St., Suite 1100
Cleveland, Ohio 44113
dgarcia@ulmer.com
sdorland@ulmer.com
Attorneys for Third-Party Defendant Eastern Ohio
Holdings LLC
/s/ Edmund W. SearBy__________
One of the Attorneys for Plaintiffs,
ClimbingBear LLC and Edmund W. Searby
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2
NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1.
IN THE COURT OF COMMON PLEAS
EXHIBIT
SUBPOENA CIVIL RULE 45
THE STATE OF OHIO /
ss.
Cuyahoga County
ClimbingBear LLC, et al.________
Plaintiff/Petitioner No. CV-23-975444
vs.
Next Lap Holdings, LLC, et al.____
Defendant/Respondent judge Nancy A. Foerst
To
Western Reserve Land Conservancy
3850 Chagrin River Road________
Moreland Hills, Ohio 44022
YOU ARE COMMANDED to appear in the Court of Common Pleas to testify as witness on behalf of the
(PLAINTIFF/DEFENDANT) in the above entitled case and not depart the Court without leave. Fail not under penalty
of the law. Your appearance is required on the of at o'clock .M. in Courtroom
No. of the:
Justice Center-Court Tower Courthouse Square Cuyahoga County Courthouse
1200 Ontario Street 310 W. Lakeside Avenue One Lakeside Avenue
Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113
r .... YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of deposition
I in the above case. ■
PLACE OF DEPOSITION DATE TIME
YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following
documents or obj'ects at the place, date and time specified below (list documents or objects):
See attached Exhibit A
950 Main Avenue, Suite 500, Cleveland, Ohio 44113___________ July 3,2023____ 10:00 am
PLACEARE COMMANDED to permit inspection of the following premises at the date
YOU and time specified below.
date time
PREMISES_________________________________________________________ DATE TIME
To Insure taxation of their fees, witnesses must report each attendance to the Clerk of Court of Common Pleas on the first floor of the Justice
Center-Courts Tower.
Section 2335.06 of the Ohio Revised Code provides that witnesses are entitled to receive $12.00 for each full day's attendance and $6.00 for
each half day's attendance, plus ten cents per mile traveled to and from his place of residence outside of the City of Cleveland proper. Such fees
are taxed as costs.
Ryan P. Sherman 41 S. High Street, Suite 2900, Columbus, OH 43215
□uUUXiE-- !— y—ADDRESS
6/9/23
’ ' REPRESENTING DATE
Cuyahoga County, Clerk of Courts
Clerk
By:
X
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EXHIBIT A TO SUBPOENA TO WESTERN RESERVE LAND CONSERVANCY
A. DEFINITIONS
1. “You” or “Your” shall mean the Western Reserve Land Conservancy, as well as
any person, agent, or attorney acting on your behalf.
2. “Easement Agreement” shall mean the Access and Utility Easement and Water
Source Agreement (Cuyahoga County Instrument 201807120314) attached as Exhibit B to the
First Amended Complaint to this action.
3. “The Driveway” shall mean the “Driveway on Parcel B” referenced in Recital 5f4
of the Easement Agreement, but also including the stone walls on the portion running uphill
4. “The Conservation Easement” shall refer to the Conservation Easement recorded
as instrument number 201507280268.
5. “The Spring” shall refer to the natural spring and perpetual water source identified
in Recital |8 of the Easement Agreement.
6. “The Property” shall refer to all or any portion of the real property located in the
Village of Hunting Valley and formerly identified by Permanent Parcel Number 882-07-001 and
divided into four parcels (“A,” “B,” “C,” and “D”) for sale as recorded in Instrument No.
201807120215.
7. “Parcel A,” “Parcel B,” “Parcel C,” and “Parcel D” shall refer to the four parcels
resulting from the lot split of the Property as recorded in Instrument No. 201807120215.
8. “The Lawsuit” shall refer to the above-captioned case between the owner of
Parcel B and Parcels A and D, and including a third party claim against Eastern Ohio Holdings,
LLC.
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9. The term “Communication” includes any transmittal, receipt or other exchange, of
information, whether oral or written, in tangible paper format or stored electronically, and
includes without limitation: correspondence, letters, electronic mail, text messages, messaging
services (including but not limited to messages on applications such as Telegram, Twitter,
WHATSAPP, Facebook, Instagram, Linkedln, Discord, and other services), notes of oral
conversations, voice recorded messages, and sound or video recording of voices or images
10. “Document” or “Documents” is defined to include anything within the definition
of “documents” or “electronically stored information” stated in Ohio Rule of Civil Procedure
34(A)(1) and any “writings and recordings” as defined by Ohio Rule of Evidence 1001. Without
limiting the generality of the foregoing, “Document” shall also include all drafts or non-identical
copies of documents, including those that include additional handwriting or marginalia The
terms Anther refer to or include any writings, correspondence, letters, memoranda, papers,
records, reports, facsimiles (faxes), electronic mail, text messages, print outs and copies thereof,
notes, summaries of conversations, transcripts, logs, diaries, journals, calendars, photographs,
statements, contracts, agreements, plans, drawings, spreadsheets, estimates, invoices, messages,
instant messages (including over applications such as WHATAPP, Facebook, Linkedln, Signal^
Twitter, and Discord), audio recordings, video recordings, or anything else from which
information may be obtained.
B. INSTRUCTIONS
1. You are hereby requested to produce all responsive Documents whether in paper
form or stored electronically. All electronically stored information shall be produced in its
native format. Non-electronically stored information may be produced in either paper form or in
electronic format.
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2. If documents are produced in electronic format, document numbers and any
confidentiality designation should be electronically branded on each produced TIFF images of ESI.
3. Reference to a person shall also include that person’s employees, agents,
attorneys, and assigns.
4. Reference to an entity shall also include that entity’s employees, agents,
managers, officers, directors, owners, independent contractors, partners, successors, and assigns.
5. The disjunctive (“or”) shall be deemed to include the conjunctive (“and”), and the
conjunctive (“and”) shall be deemed to include the disjunctive (“or”), and the functional word
“all” should be interpreted to include “each,” “eveiy,” and “any.” “Any” should also be
interpreted to include “all” and “every.”
6. Compliance with this subpoena may be achieved by mailing the documents to
Edmund W. Searby at the address listed above for receipt on or before the date specified.
7. Except where otherwise noted, this subpoena refers to all documents created,
exchanged or dated during the period from January 1,2017 through the present (the “Relevant
Period”) which relate to, refer to, or constitute:
C. DOCUMENTS TO BE PRODUCED
1. All Documents and Communications exchanged between You and Ron Hess, Jr.,
or other representative, attorney, or agent for Next Lap Holdings, LLC., including but not limited
to relating to the following:
a. The purchase of all or a portion of the Property.
b. The Easement Agreement.
c. The Driveway.
d. Brian Colleran or the Colleran Family Foundation.
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e. The Spring or other water sources on the Property.
f. The Conservation Easement
g. The Lawsuit.
h. Any owner or resident of Parcel B.
2. All Documents and Communications relating to the transfer of the Property from
Barbara B. Gratry, individually or as successor trustee under the Stoneybrook Trust to Eastern
Ohio Holdings, LLC.
3. All Documents and Communications relating to Brian Colleran or the Colleran
Family Foundation and the transfer of the Property, including but not limited to Parcel B and
Parcel C or the Easement Agreement.
4. All Communications and Documents exchanged between You and Barbara Gratry
relating to the following:
a. The sale of the Property.
b. The split of the property formerly identified as or a part of Parcel Number
882-08-002.
c. The sale of Parcels A and D to Next Lap Holdings, LLC.
d. The sale of Parcels B and C to theColleran Family Foundation.
e. The Easement Agreement;
f. The Conservation Easement.
5. All Communications and Documents exchanged between You and Eastern Ohio
Holdings, LLC, relating to the sale of the Property.
6. All Communications and Documents exchanged between You and Brian Colleran
or other representative of the Colleran Family Foundation relating to the Easement Agreement,
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the Conservation Easement, or the purchase of the Property.
7. All Documents relating to or which record payments made between Eastern Ohio
Holdings, LLC and Barbara Gratry, individually or as Trustee for any trust.
8. All Documents relating to payments made by or on behalf of the Colleran Family
Foundation for the purchase of Parcels B and C.
9. All Documents relating to payments made by Next Lap Holdings, LLC for the
purchase of Parcels A and D.
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Ulmer ATTORNEYS
June 23, 2023
VIA ELECTRONIC MAIL
Ryan P. Sherman, Esq.
Porter Wright Morris & Arthur LLP
41 S. High Street, Suite 2900
Columbus, OH 43215
Re: Subpoena Duces Tecum served on Western Reserve Land Conservancy
Climbingbear LLC et al. v. Next Lap Holdings, LLC et al.
Cuyahoga County Court of Common Pleas Case No. CV 23 975444
Dear Ryan:
I am writing in response to the subpoenas dated June 9, 2023 (the “Subpoena”) and served
on Western Reserve Land Conservancy (“Western Reserve”). Western Reserve objects to the
Subpoena on the basis that it violates Ohio Rule of Civil Procedure 45, which prohibits the use
of a subpoena to obtain discovery from a party to a dispute. Specifically, Rule 45 provides, in
relevant part:
A subpoena may not be used to obtain the attendance of a party or the
production of documents by a party in discovery. Rather, a party's
attendance at a deposition may be obtained only by notice under Civ.R. 30, and
documents or electronically stored information may be obtained from a
party in discovery only pursuant to Civ.R. 34.
CLEVELAND Ohio R. Civ.45(1)(c) (emphasis added).
COLUMBUS
As you know, Defendant Next Lap Holdings, LLC added Eastern Ohio Holdings LLC (“EOH”)
CINCINNATI as a party to the above-referenced matter via its Third-Party Complaint. As the Third-Party
Complaint alleges in paragraph 4—and as EOH admitted in its Answer to the Third-Party
CHICAGO
Complaint—Western Reserve is the sole member of EOH.
NEW YORK
WASHINGTON DC
Because EOH is a party to this dispute, Western Reserve objects to the Subpoena on the
basis that it has been improperly served pursuant to Rule 45.
BOCA RATON
Please contact me should you wish to discuss further.
ULMER.COM
Sincerely
/s/ *Z>ofa>te4 P- fancia
Dolores P. Garcia
ElectronWllWHetf 10*31/2023 16:53 / NOTICE / CV 2?9?5444^0WlrmatioflAlNbr213005®01 / BATCH
Suite 1100
Cleveland, OH 44113-1406
EXHIBIT
IN THE COURT OF COMMON PLEAS 3
CUYAHOGA COUNTY, OHIO
CLIMBINGBEAR LLC, et al. ) CASE NO. CV-23-975444
)
Plaintiffs, ) JUDGE NANCY A. FUERST
) MAGISTRATE JUDGE JIM L. JACKSON
v. )
)
NEXT LAP HOLDINGS, LLC, et al. )
)
Defendants. )
PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION
DIRECTED TO DEFENDANT EASTERN OHIO HOLDINGS, LLC
Pursuant to Ohio Rules of Civil Procedure 26 and 34, Plaintiffs ClimbingBear LLC and
Edmund W. Searby (“Plaintiffs”) serve this First Set of Requests for Production of Documents
upon Eastern Ohio Holdings, LLC (the “Defendant”). In accordance with the Ohio Rules of Civil
Procedure, Plaintiffs request that the Defendant produce for inspection and copying the documents
and things designated below to the offices of Porter Wright Morris & Arthur, 950 Main Avenue,
Suite 500, Cleveland, OH 44113 (Attn.: Edmund W. Searby) within twenty-eight (28) days of the
service hereof.
DEFINITIONS
1. “You” or “Your” shall mean Eastern Ohio Holdings LLC or the Western Reserve
Land Conservancy, as well as any person, employee, agent, or attorney acting on Your behalf.
2. “Easement Agreement” shall mean the Access and Utility Easement and Water
Source Agreement (Cuyahoga County Instrument 201807120314) attached as Exhibit B to the
First Amended Complaint to this action.
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3. “The Driveway” shall mean the “Driveway on Parcel B” referenced in Recital ^|4
of the Easement Agreement, but also including the stone walls on the portion running uphill.
4. “The Conservation Easement” shall refer to the Conservation Easement recorded
as instrument number 201507280268.
5. “The Spring” shall refer to the natural spring and perpetual water source identified
in Recital ^8 of the Easement Agreement.
6. “The Property” shall refer to all or any portion of the real property located in the
Village of Hunting Valley and formerly identified by Permanent Parcel Number 882-07-001 and
divided into four parcels (“A,” “B,” “C,” and “D”) for sale as recorded in Instrument No.
201807120215.
7. “Parcel A,” “Parcel B,” “Parcel C,” and “Parcel D” shall refer to the four parcels
resulting from the lot split of the Property as recorded in Instrument No. 201807120215.
8. “The Lawsuit” shall refer to the above-captioned case between the owner of
Parcel B and Parcels A and D, and including a third party claim against Eastern Ohio Holdings,
LLC.
9. The term “Communication” includes any transmittal, receipt or other exchange of
information, whether oral or written, in tangible paper format or stored electronically, and
includes without limitation: correspondence, letters, electronic mail, text messages, messaging
services (including but not limited to messages on applications such as Telegram, Twitter,
WHATSAPP, Facebook, Instagram, Linkedln, Discord, and other services), notes of oral
conversations, voice recorded messages, and sound or video recording of voices or images.
10. “Document” or “Documents” is defined to include anything within the definition
of “documents” or “electronically stored information” stated in Ohio Rule of Civil Procedure
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
34(A)(1) and any “writings and recordings” as defined by Ohio Rule of Evidence 1001. Without
limiting the generality of the foregoing, the terms shall also include all drafts or non-identical
copies of documents, including those that include additional handwriting or marginalia. The
terms “Document” or “Documents” further refer to or include, without limitation, any writings,
correspondence, letters, memoranda, papers, records, reports, facsimiles (faxes), electronic mail,
text messages, print outs and copies thereof, notes, summaries of conversations, transcripts, logs,
diaries, journals, calendars, photographs, checks, wire transmission reports, ACH transfer
reports, statements, contracts, agreements, plans, drawings, spreadsheets, estimates, invoices,
messages, instant messages (including over applications such as WHATAPP, Facebook,
Linkedln, Signal, Twitter, and Discord), audio recordings, video recordings, or anything else
from which information may be obtained.
INSTRUCTIONS
1. You are hereby requested to produce all responsive Documents whether in paper
form or stored electronically. All electronically stored information shall be produced in its
native format. Non-electronically stored information may be produced in either paper form or in
electronic format.
2. If documents are produced in electronic format, document numbers and any
confidentiality designation should be electronically branded on each produced TIFF images of ESI.
3. Reference to a person shall also include that person’s employees, agents,
attorneys, and assigns.
4. Reference to an entity shall also include that entity’s employees, agents,
managers, officers, directors, owners, independent contractors, partners, successors, and assigns.
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
5. The disjunctive (“or”) shall be deemed to include the conjunctive (“and”), and the
conjunctive (“and”) shall be deemed to include the disjunctive (“or”), and the functional word
“all” should be interpreted to include “each,” “every,” and “any.” “Any” should also be
interpreted to include “all” and “every.”
REQUESTS FOR DOCUMENT PRODUCTION
1. All Documents and Communications exchanged between You and Ron Hess, Jr.,
or other representative, attorney, or agent for Ron Hess, Jr. or Next Lap Holdings, LLC.,
including but not limited to relating to the following:
a. The purchase of all or a portion of the Property .
b. The Easement Agreement.
c. The Driveway.
d. Brian Colleran or the Colleran Family Foundation.
e. The Spring or other water sources on the Property.
f. The Conservation Easement.
g. Any charitable pledge or contribution to the Western Reserve land Conservancy.
h. The Lawsuit.
i. Any owner or resident of Parcel B.
RESPONSE:
2. All Documents and Communications relating to the transfer of the Property from
Barbara B. Gratry, individually or as successor trustee under the Stoneybrook Trust to Eastern
Ohio Holdings, LLC.
RESPONSE:
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3. All Documents and Communications relating to Brian Colleran or the Colleran
Family Foundation and the purchase or sale of the Property, including but not limited to Parcel B
and Parcel C or the Easement Agreement.
RESPONSE:
4. All Communications and Documents exchanged between You and Barbara Gratry
relating to the following:
a. The sale of the Property.
b. The split of the property formerly identified as or a part of Parcel Number 882-08-
002.
c. The sale of Parcels A and D to Next Lap Holdings, LLC.
d. The sale of Parcels B and C to the Colleran Family Foundation.
e. The Easement Agreement;
f. The Conservation Easement.
RESPONSE:
5. All Communications and Documents exchanged between You and Eastern Ohio
Holdings, LLC, relating to the sale of the Property.
RESPONSE:
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6. All Communications and Documents exchanged between You and Brian Colleran
or other representative of the Colleran Family Foundation relating to the Easement Agreement,
the Conservation Easement, or the purchase of the Property.
RESPONSE:
7. All Documents relating to or which record payments made between Eastern Ohio
Holdings, LLC and Barbara Gratry, individually or as Trustee for any trust, for the purchase of
the Property.
RESPONSE:
8. All Documents relating to payments made by or on behalf of the Colleran Family
Foundation for the purchase of Parcels B and C.
RESPONSE:
9. All Documents relating to payments made by or on behalf of Next Lap Holdings,
LLC for the purchase of Parcels A and D.
RESPONSE:
10. All Communications or Documents exchanged with ClimbingBear, LLC or
Edmund W. Searby relating to Parcel B.
RESPONSE:
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Respectfully submitted,
Edmund W. Searby (0067455)
Porter Wright Morris & Arthur llp
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
(216) 443-9000 / Fax (216) 443-9011
esearby@porterwright.com
James D. Curphey (0015832)
Ryan P. Sherman (0075081)
Porter Wright Morris & Arthur llp
41 S. High Street, Suite 2900
Columbus, OH 43215
(614) 227-2184 / Fax (614) 227-2100
jcurphey@porterwright.com
rsherman@porterwright. com
Attorneys for Plaintiffs ClimbingBear, LLC, and
Edmund W. Searby
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CERTIFICATE OF SERVICE
A true and complete copy of the PLAINTIFFS’ FIRST SET OF REQUESTS FOR
PRODUCTION DIRECTED TO DEFENDANT EASTERN OHIO HOLDINGS, LLC have been
served via email this 29th day of June, 2023 upon:
John P. Slagter
Anthony R. Vacant!
Danielle M. Easton
TUCKER ELLIS LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
i ohn. slagter @,tu ckerel li s. com
tony.vacanti@tuckerelUs.com
danielle.easton@tuckerellis.com
Attorneys for Defendants Next Lap Holdings, LLC,
Ronald C. Hess, Jr., Ronald C. Hess, Sr., and Janet
Hess
Dolores P. Garcia
Sara S. Dorland
ULMER & BERNE LLP
1660 W. 2nd St, Suite 1100
Cleveland, Ohio 44113
dgarcia@ulmer.com
sdorland@ulmer.com
Attorneys for Third-Party Defendant Eastern Ohio
Holdings LLC
One of the Attorney for Plaintiffs ClimbingBear,
LLC, and Edmund W. Searby
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EXHIBIT
Searb^JEdmuncHA^ H
From: Linehan, Matthew
Sent: Thursday, August 10, 2023 4:48 PM
To: Searby, Edmund W.; Curphey, James D.; Sherman, Ryan P.; john.slagter@tuckerellis.com;
tony.vacanti@tuckerellis.com; danielle.easton@tuckerellis.com
Cc: Garcia, Dolores; Schwallie, Halden
Subject: #EXT# Climbingbear LLC v. Next Lap Holdings LLC | EOH_PRODOQ1
Attachments: Attachments.html
l#External Email#
Counselors,
Please find below a Sharefile link to download third-party defendant Eastern Ohio Holding's first production of
documents, EOH_PRODOOl.zip. The production is in load-ready TIFF plus native excel format, with a Bates range of
EOH_000001 - EOH_001273.
Your Sharefile username is your email address. You can set your own Sharefile password upon first logging into the
Sharefile site; alternatively, you may reset your password at any time thereafter by using the "Forgot Password" option
at the login screen. The Sharefile download link only works for those copied on this email, so if anyone else needs
access please let me know.
The .zip archive is also encrypted with its own password that I will email you separately.
Ulmer & Berne LLP Expires September 9,2023
EOH_PROD001.zip 316 MB
Download Attachments
If you already have an Ulmer ShareFile account, please click the download link above and
log in to access the files. If you have forgotten your password, use the Forgot Password
link to reset. If you do not have an Ulmer ShareFile account you will receive a separate
email with account activation instructions. If you were not expecting this file or are unsure
of the validity, please contact the Ulmer office by calling (216) 583-7000, and ask to speak
with the attorney who sent the files for verification.
Best Regards,
J. Matthew Linehan
Ulmer
DIRECT: 216.583.7194
DIRECT FAX: 216.583.7195
MOBILE: 216.789.7926
mlinehan@ulmer.com | bio | vcard
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
1
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Cleveland, Ohio 44113-1406
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Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
2
EXHIBIT
Edmund Searby October 16, 2023
esearby@portsrwrighLcom
www.porterwright.com
VIA ELECTRONIC MAIL (dgarcia@ulmer.com)
Porter Wright
Morris & Arthur LLP
950 Main Avenue
Suite 500 Dolores P. Garcia, Esq.
Cleveland, OH 44113
Ulmer & Berne LLP
Direct: 216.443.2545 1660 W. 2nd Street, Suite 1100
Fax: 216.443.9011
Main: 216.443.9000 Cleveland, OH 44113
Re: Notice of Deposition
www.porterwright.com
porter weight Dear Lola:
CHICAGO
CINCINNATI
Please find enclosed a 30(B)(5) deposition notice for Eastern Ohio
CLEVELAND Holdings, LLC (“Eastern Ohio”). In light of your prior position in
COLUMBUS discovery that Western Reserve Land Conservancy should be treated
DAYTON as a party to this case (as the sole member of Eastern Ohio), we have
NAPLES
not served a separate notice pursuant to Rule 45 for the Western
PITTSBURGH
Reserve Land Conservancy. If there is any misunderstanding on this
WASHINGTON, DC
point, please advise.
Also, this deposition is taken in part because we can locate only a
limited number of emails in Eastern Ohio's production. If you believe
there is some oversight or misunderstanding in this regards, please
consider letting us know in advance of the deposition.
Finally, if the date chosen does not work, please provide
alternative dates as soon as possible.
Thank you in advance for your cooperation.
EWS:mav
Enclosure
cc: Sara S. Dorland, Esq.
Ryan Sherman, Esq.
23243541V1
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
CLIMBINGBEAR LLC, ET AL. ) CASE NO. CV-23-975444
)
Plaintiffs, ) JUDGE NANCY A. FUERST
) MAGISTRATE JIM L. JACKSON
V. )
)
NEXT LAP HOLDINGS, LLC, ET AL. ) NOTICE OF DEPOSITION OF
) EASTERN OHIO HOLDINGS.
Defendants. ) LLC PURSUANT TO OHIO
) RULE (301(B)(5)
)
Pursuant to Rule 30(B)(5) of the Ohio Rules of Civil Procedure, please take
notice that Plaintiff Edmund W. Searby will take the deposition of an authorized
representative or representatives of third-party defendant Eastern Ohio Holdings,
LLC, on October 26, 2023 at the offices of Porter, Wright, Morris & Arthur LLP, 950
Main Avenue, Suite 500, Cleveland, Ohio 44113, before an officer duly authorized
to administer oaths under the laws of the State of Ohio and recorded by
stenographic means.
Eastern Ohio shall designate one or more of its proper employees, officers,
agents, or other person(s) duly authorized to testify on its behalf as to matters
known or available to Eastern Ohio on the topics set forth on Exhibit A. The
deposition will be taken as if on cross-examination. You are invited to attend and
examine the deponent.
23242611vi
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
Dated: October 16, 2023 Respectfully, submitted.
ZsZ Edmund W. Searby__________
Edmund W. Searby (0067455)
Porter Wright Morris & Arthur llp
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
(216) 443-9000 / Fax (216) 443-9011
esearbvig.porterwriuht.com
Attorney for Plaintiffs ClimbingBear, LLC,
and Edmund W. Searby
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
CERTIFICATE OF SERVICE
The foregoing Notice Of Deposition Pursuant To Ohio Rule (30)(B)(5) was
served this 16th day of October, 2023 via email upon:
John P. Slagter
Anthony R. Vacant!
Danielle M. Easton
TUCKER ELLIS LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
j phn. slagter «Juckerellis.com
tom'.vacanti
SentEWfrdnmtofiiertrt«mS?aCI5!53HNOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
1
To: Searby, Edmund W.
Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice
Counsel,
EOH's designee is available the following dates/times (I'm not sure how much time you anticipate needing, but assuming
a half day; if you need a full day we will need to look farther out).
November 14th - afternoon (after 1pm)
November 16th- morning (need to be done by noon)
November 20th - afternoon (12-3)
Let me know when you would like to proceed.
Thanks,
Lola
Dolores Garcia
Ulmer & Berne LLP
p 216.583.7430
c 216.973.2701
From: Searby, Edmund W.
Sent: Friday, October 20, 2023 2:14 PM
To: Garcia, Dolores
Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice
Will do. I have not seen any others.
EDMUND W. SEARBY
Porter Wright Morris & Arthur LLP
Bio / ESearbv@porterwriqht.com
0:216.443.2545 / F: 216.443.9011
950 Main Avenue, Suite 500 / Cleveland, OH 44113
/ MANSFIELD CERTIFIED PLUS
We are moving the needle on diversity, equity, and inclusion. Learn more
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
2
From: Garcia, Dolores
Sent: Friday, October 20, 2023 1:28 PM
To: Vacant!, Anthony R. ; Searby, Edmund W.
Cc: Dorland, Sara : Sherman, Ryan P. : Slagter, John P.
; Easton, Danielle M.
Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice
I will provide multiple dates as soon as I have them.
Please also make sure that we are included on emails re: other depo notices; I haven't seen any others.
Thanks,
Lola
Dolores Garcia
Ulmer & Berne LLP
p 216.583.7430
C 216.973.2701
From: Vacanti, Anthony R.
Sent: Friday, October 20, 2023 1:26 PM
To: Searby, Edmund W. ; Garcia, Dolores
Cc: Dorland, Sara ; Sherman, Ryan P. : Slagter, John P.
: Easton, Danielle M.
Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice
Thank you. If you can please provide several different dates, that would be helpful for scheduling purposes.
Anthony R. Vacanti | Attorney | Tucker Ellis LLP
950 Main Avenue, Suite 11001 Cleveland, OH 44113-7213
Direct: 216-696-2093 | Fax: 216-592-5009 | Mobile: 216-385-0409
tony.vacanti@tuckerellis.com Online biography - Anthony R. Vacanti
tuckerellis.com
Cleveland | Chicago | Columbus | Los Angeles | San Francisco | St. Louis | Washington D.C.
This e-mail is sent by the law firm of Tucker Ellis LLP and may contain information that is privileged or confidential. If
you are not the intended recipient, please delete the e-mail and notify us immediately by return email.
From: Searby, Edmund W.
Sent: Friday, October 20, 2023 1:24 PM
To: 'Garcia, Dolores'
Cc: Dorland, Sara ; Sherman, Ryan P. ; Vacanti, Anthony R.
; Slagter, John P. ; Easton, Danielle M.
; Searby, Edmund W.
Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice
<« EXTERNAL EMAIL »>
Lola,
Following up regarding alternative dates? And copying the Tucker Ellis lawyers so they are in the loop.
BestEiectronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
3
EDMUND W. SEARBY
Porter Wright Morris & Arthur LLP
Bio / ESearbv@porterwright.com
0:216.443.2545 / F: 216.443.9011
950 Main Avenue, Suite 500 / Cleveland, OH 44113
/ MANSFIELD CERTIFIED PLUS
We are moving the needle on diversity, equity, and inclusion. Learn more
From: Garcia, Dolores
Sent: Tuesday, October 17, 2023 10:07 PM
To: Searby, Edmund W.
Cc: Dorland, Sara : Sherman, Ryan P.
Subject: #EXT# RE: Letter to Dolores Garcia and Notice
#External Email#
Ed,
I am not available October 26, but we will provide some alternate dates.
Best,
Lola
Dolores Garcia
Ulmer & Berne LLP
p 216.583.7430
c 216.973.2701
From: Searby, Edmund W.
Sent: Monday, October 16, 2023 5:26 PM
To: Garcia, Dolores
Cc: Dorland, Sara ; Sherman, Ryan P.
Subject: Letter to Dolores Garcia and Notice
Lola,
Please see the attached letter and notice.
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
4
Best,
EDMUND W. SEARBY
Porter Wright Morris & Arthur LLP
Bio / ESearbv@porterwriqht.com
0:216.443.2545 / F: 216.443.9011
950 Main Avenue, Suite 500 / Cleveland, OH 44113
I MANSFIELD CERTIFIED PLUS
We are moving the needle on diversity, equity, and inclusion. Learn more
NOTICE FROM PORTER WRIGHT MORRIS & ARTHUR LLP:
This message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read, print or forward it. Please reply to the sender
that you have received the message in error. Then delete it. Thank you.
END OF NOTICE
Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH
5
EXHIBIT
Searby, Edmund W.
From: Garcia, Dolores
Sent: Monday, October 30, 2023 3:13 PM
To: Searby, Edmund W.; 'Vacant!, Anthony R.'
Cc: 'Easton, Danielle M.'; Dorland, Sara; Sherman, Ryan P.; Curphey, James D.
Subject: #EXT# RE: 30b5 Deposition and Scheduling
Ed and Tony,
There will be no supplemental production from EOH. I did notice that we have not produced a privilege log yet, and we
will provide that this week.
Likewise, we do not have earlier dates to offer. We a
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas NOTICE OF October 31,2023 16:53 By: EDMUND W. SEARBY 0067455 Confirmation Nbr. 3005601 CLIMBINGBEAR LLC, ET AL. CV 23 975444 vs. Judge: NANCY A. FUERST NEXT LAP HOLDINGS, LLC, ET AL. Pages Filed: 72 Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CLIMBINGBEAR LLC, ET AL. ) CASE NO. CV-23-975444 ) Plaintiffs, ) JUDGE NANCY A. FUERST ) MAGISTRATE JIM L. JACKSON v. ) ) NOTICE OF FILING EXHIBITS NEXT LAP HOLDINGS, LLC, ET AL. ) TO MOTION TO EXTEND FACT ) DISCOVERY DEADLINE AND Defendants. ) INCORPORATED ) MEMORANDUM OF LAW ) Plaintiffs ClimbingBear, LLC and Edmund W. Searby hereby respectfully submits the Exhibits in support of Motion to Extend Fact Discovery Deadline and Incorporated Memorandum of Law contemporaneously filed herewith. Respectfully submitted, /s/ Edmund W. Searby__________ Edmund W. Searby (0067455) Porter Wright Morris & Arthur llp 950 Main Avenue, Suite 500 Cleveland, Ohio 44113 (216) 443-9000 / Fax (216) 443-9011 esearby@porterwright.com James D. Curphey (0015832) Ryan P. Sherman (0075081) Porter Wright Morris & Arthur llp 41 S. High Street, Suite 2900 Columbus, OH 43215 (614) 227-2184 / Fax (614) 227-2100 jcurphey@porterwright.com rsherman@porterwright.com Attorney for Plaintiffs ClimbingBear, LLC, and Edmund W. Searby Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH CERTIFICATE OF SERVICE The foregoing Plaintiffs’ Notice of Filing Exhibits to Motion To Extend Fact Discovery Deadline And Incorporated Memorandum Of Law was served this 31st day of October, 2023 via email upon: John P. Slagter Anthony R. Vacanti Danielle M. Easton TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 john.slagter@tuckerellis.com tony.vacanti@tuckerellis.com danielle. e aston@tuckerellis .com Attorneys far Defendants Next Lap Holdings, LLC, Ronald C. Hess, Jr., Ronald C. Hess, Sr., and Janet Hess Dolores P. Garcia Sara S. Dorland ULMER & BERNE LLP 1660 W. 2nd St., Suite 1100 Cleveland, Ohio 44113 dgarcia@ulmer.com sdorland@ulmer.com Attorneys for Third-Party Defendant Eastern Ohio Holdings LLC /s/ Edmund W. SearBy__________ One of the Attorneys for Plaintiffs, ClimbingBear LLC and Edmund W. Searby 23305017v1 Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 2 NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1. IN THE COURT OF COMMON PLEAS EXHIBIT SUBPOENA CIVIL RULE 45 THE STATE OF OHIO / ss. Cuyahoga County ClimbingBear LLC, et al.________ Plaintiff/Petitioner No. CV-23-975444 vs. Next Lap Holdings, LLC, et al.____ Defendant/Respondent judge Nancy A. Foerst To Western Reserve Land Conservancy 3850 Chagrin River Road________ Moreland Hills, Ohio 44022 YOU ARE COMMANDED to appear in the Court of Common Pleas to testify as witness on behalf of the (PLAINTIFF/DEFENDANT) in the above entitled case and not depart the Court without leave. Fail not under penalty of the law. Your appearance is required on the of at o'clock .M. in Courtroom No. of the: Justice Center-Court Tower Courthouse Square Cuyahoga County Courthouse 1200 Ontario Street 310 W. Lakeside Avenue One Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113 r .... YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of deposition I in the above case. ■ PLACE OF DEPOSITION DATE TIME YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following documents or obj'ects at the place, date and time specified below (list documents or objects): See attached Exhibit A 950 Main Avenue, Suite 500, Cleveland, Ohio 44113___________ July 3,2023____ 10:00 am PLACEARE COMMANDED to permit inspection of the following premises at the date YOU and time specified below. date time PREMISES_________________________________________________________ DATE TIME To Insure taxation of their fees, witnesses must report each attendance to the Clerk of Court of Common Pleas on the first floor of the Justice Center-Courts Tower. Section 2335.06 of the Ohio Revised Code provides that witnesses are entitled to receive $12.00 for each full day's attendance and $6.00 for each half day's attendance, plus ten cents per mile traveled to and from his place of residence outside of the City of Cleveland proper. Such fees are taxed as costs. Ryan P. Sherman 41 S. High Street, Suite 2900, Columbus, OH 43215 □uUUXiE-- !— y—ADDRESS 6/9/23 ’ ' REPRESENTING DATE Cuyahoga County, Clerk of Courts Clerk By: X Electronically Filed 10/31/2023 16:53 / NOTICE / CV >3 975444 / Confirmation Nbr. 3005601 / BATCH EXHIBIT A TO SUBPOENA TO WESTERN RESERVE LAND CONSERVANCY A. DEFINITIONS 1. “You” or “Your” shall mean the Western Reserve Land Conservancy, as well as any person, agent, or attorney acting on your behalf. 2. “Easement Agreement” shall mean the Access and Utility Easement and Water Source Agreement (Cuyahoga County Instrument 201807120314) attached as Exhibit B to the First Amended Complaint to this action. 3. “The Driveway” shall mean the “Driveway on Parcel B” referenced in Recital 5f4 of the Easement Agreement, but also including the stone walls on the portion running uphill 4. “The Conservation Easement” shall refer to the Conservation Easement recorded as instrument number 201507280268. 5. “The Spring” shall refer to the natural spring and perpetual water source identified in Recital |8 of the Easement Agreement. 6. “The Property” shall refer to all or any portion of the real property located in the Village of Hunting Valley and formerly identified by Permanent Parcel Number 882-07-001 and divided into four parcels (“A,” “B,” “C,” and “D”) for sale as recorded in Instrument No. 201807120215. 7. “Parcel A,” “Parcel B,” “Parcel C,” and “Parcel D” shall refer to the four parcels resulting from the lot split of the Property as recorded in Instrument No. 201807120215. 8. “The Lawsuit” shall refer to the above-captioned case between the owner of Parcel B and Parcels A and D, and including a third party claim against Eastern Ohio Holdings, LLC. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 9. The term “Communication” includes any transmittal, receipt or other exchange, of information, whether oral or written, in tangible paper format or stored electronically, and includes without limitation: correspondence, letters, electronic mail, text messages, messaging services (including but not limited to messages on applications such as Telegram, Twitter, WHATSAPP, Facebook, Instagram, Linkedln, Discord, and other services), notes of oral conversations, voice recorded messages, and sound or video recording of voices or images 10. “Document” or “Documents” is defined to include anything within the definition of “documents” or “electronically stored information” stated in Ohio Rule of Civil Procedure 34(A)(1) and any “writings and recordings” as defined by Ohio Rule of Evidence 1001. Without limiting the generality of the foregoing, “Document” shall also include all drafts or non-identical copies of documents, including those that include additional handwriting or marginalia The terms Anther refer to or include any writings, correspondence, letters, memoranda, papers, records, reports, facsimiles (faxes), electronic mail, text messages, print outs and copies thereof, notes, summaries of conversations, transcripts, logs, diaries, journals, calendars, photographs, statements, contracts, agreements, plans, drawings, spreadsheets, estimates, invoices, messages, instant messages (including over applications such as WHATAPP, Facebook, Linkedln, Signal^ Twitter, and Discord), audio recordings, video recordings, or anything else from which information may be obtained. B. INSTRUCTIONS 1. You are hereby requested to produce all responsive Documents whether in paper form or stored electronically. All electronically stored information shall be produced in its native format. Non-electronically stored information may be produced in either paper form or in electronic format. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 97$444 / Confirmation Nbr. 3005601 / BATCH 2. If documents are produced in electronic format, document numbers and any confidentiality designation should be electronically branded on each produced TIFF images of ESI. 3. Reference to a person shall also include that person’s employees, agents, attorneys, and assigns. 4. Reference to an entity shall also include that entity’s employees, agents, managers, officers, directors, owners, independent contractors, partners, successors, and assigns. 5. The disjunctive (“or”) shall be deemed to include the conjunctive (“and”), and the conjunctive (“and”) shall be deemed to include the disjunctive (“or”), and the functional word “all” should be interpreted to include “each,” “eveiy,” and “any.” “Any” should also be interpreted to include “all” and “every.” 6. Compliance with this subpoena may be achieved by mailing the documents to Edmund W. Searby at the address listed above for receipt on or before the date specified. 7. Except where otherwise noted, this subpoena refers to all documents created, exchanged or dated during the period from January 1,2017 through the present (the “Relevant Period”) which relate to, refer to, or constitute: C. DOCUMENTS TO BE PRODUCED 1. All Documents and Communications exchanged between You and Ron Hess, Jr., or other representative, attorney, or agent for Next Lap Holdings, LLC., including but not limited to relating to the following: a. The purchase of all or a portion of the Property. b. The Easement Agreement. c. The Driveway. d. Brian Colleran or the Colleran Family Foundation. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975$44 / Confirmation Nbr. 3005601 / BATCH e. The Spring or other water sources on the Property. f. The Conservation Easement g. The Lawsuit. h. Any owner or resident of Parcel B. 2. All Documents and Communications relating to the transfer of the Property from Barbara B. Gratry, individually or as successor trustee under the Stoneybrook Trust to Eastern Ohio Holdings, LLC. 3. All Documents and Communications relating to Brian Colleran or the Colleran Family Foundation and the transfer of the Property, including but not limited to Parcel B and Parcel C or the Easement Agreement. 4. All Communications and Documents exchanged between You and Barbara Gratry relating to the following: a. The sale of the Property. b. The split of the property formerly identified as or a part of Parcel Number 882-08-002. c. The sale of Parcels A and D to Next Lap Holdings, LLC. d. The sale of Parcels B and C to theColleran Family Foundation. e. The Easement Agreement; f. The Conservation Easement. 5. All Communications and Documents exchanged between You and Eastern Ohio Holdings, LLC, relating to the sale of the Property. 6. All Communications and Documents exchanged between You and Brian Colleran or other representative of the Colleran Family Foundation relating to the Easement Agreement, Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH the Conservation Easement, or the purchase of the Property. 7. All Documents relating to or which record payments made between Eastern Ohio Holdings, LLC and Barbara Gratry, individually or as Trustee for any trust. 8. All Documents relating to payments made by or on behalf of the Colleran Family Foundation for the purchase of Parcels B and C. 9. All Documents relating to payments made by Next Lap Holdings, LLC for the purchase of Parcels A and D. 22728549v1 Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 97^44 / Confirmation Nbr. 3005601 / BATCH Ulmer ATTORNEYS June 23, 2023 VIA ELECTRONIC MAIL Ryan P. Sherman, Esq. Porter Wright Morris & Arthur LLP 41 S. High Street, Suite 2900 Columbus, OH 43215 Re: Subpoena Duces Tecum served on Western Reserve Land Conservancy Climbingbear LLC et al. v. Next Lap Holdings, LLC et al. Cuyahoga County Court of Common Pleas Case No. CV 23 975444 Dear Ryan: I am writing in response to the subpoenas dated June 9, 2023 (the “Subpoena”) and served on Western Reserve Land Conservancy (“Western Reserve”). Western Reserve objects to the Subpoena on the basis that it violates Ohio Rule of Civil Procedure 45, which prohibits the use of a subpoena to obtain discovery from a party to a dispute. Specifically, Rule 45 provides, in relevant part: A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party's attendance at a deposition may be obtained only by notice under Civ.R. 30, and documents or electronically stored information may be obtained from a party in discovery only pursuant to Civ.R. 34. CLEVELAND Ohio R. Civ.45(1)(c) (emphasis added). COLUMBUS As you know, Defendant Next Lap Holdings, LLC added Eastern Ohio Holdings LLC (“EOH”) CINCINNATI as a party to the above-referenced matter via its Third-Party Complaint. As the Third-Party Complaint alleges in paragraph 4—and as EOH admitted in its Answer to the Third-Party CHICAGO Complaint—Western Reserve is the sole member of EOH. NEW YORK WASHINGTON DC Because EOH is a party to this dispute, Western Reserve objects to the Subpoena on the basis that it has been improperly served pursuant to Rule 45. BOCA RATON Please contact me should you wish to discuss further. ULMER.COM Sincerely /s/ *Z>ofa>te4 P- fancia Dolores P. Garcia ElectronWllWHetf 10*31/2023 16:53 / NOTICE / CV 2?9?5444^0WlrmatioflAlNbr213005®01 / BATCH Suite 1100 Cleveland, OH 44113-1406 EXHIBIT IN THE COURT OF COMMON PLEAS 3 CUYAHOGA COUNTY, OHIO CLIMBINGBEAR LLC, et al. ) CASE NO. CV-23-975444 ) Plaintiffs, ) JUDGE NANCY A. FUERST ) MAGISTRATE JUDGE JIM L. JACKSON v. ) ) NEXT LAP HOLDINGS, LLC, et al. ) ) Defendants. ) PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION DIRECTED TO DEFENDANT EASTERN OHIO HOLDINGS, LLC Pursuant to Ohio Rules of Civil Procedure 26 and 34, Plaintiffs ClimbingBear LLC and Edmund W. Searby (“Plaintiffs”) serve this First Set of Requests for Production of Documents upon Eastern Ohio Holdings, LLC (the “Defendant”). In accordance with the Ohio Rules of Civil Procedure, Plaintiffs request that the Defendant produce for inspection and copying the documents and things designated below to the offices of Porter Wright Morris & Arthur, 950 Main Avenue, Suite 500, Cleveland, OH 44113 (Attn.: Edmund W. Searby) within twenty-eight (28) days of the service hereof. DEFINITIONS 1. “You” or “Your” shall mean Eastern Ohio Holdings LLC or the Western Reserve Land Conservancy, as well as any person, employee, agent, or attorney acting on Your behalf. 2. “Easement Agreement” shall mean the Access and Utility Easement and Water Source Agreement (Cuyahoga County Instrument 201807120314) attached as Exhibit B to the First Amended Complaint to this action. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 3. “The Driveway” shall mean the “Driveway on Parcel B” referenced in Recital ^|4 of the Easement Agreement, but also including the stone walls on the portion running uphill. 4. “The Conservation Easement” shall refer to the Conservation Easement recorded as instrument number 201507280268. 5. “The Spring” shall refer to the natural spring and perpetual water source identified in Recital ^8 of the Easement Agreement. 6. “The Property” shall refer to all or any portion of the real property located in the Village of Hunting Valley and formerly identified by Permanent Parcel Number 882-07-001 and divided into four parcels (“A,” “B,” “C,” and “D”) for sale as recorded in Instrument No. 201807120215. 7. “Parcel A,” “Parcel B,” “Parcel C,” and “Parcel D” shall refer to the four parcels resulting from the lot split of the Property as recorded in Instrument No. 201807120215. 8. “The Lawsuit” shall refer to the above-captioned case between the owner of Parcel B and Parcels A and D, and including a third party claim against Eastern Ohio Holdings, LLC. 9. The term “Communication” includes any transmittal, receipt or other exchange of information, whether oral or written, in tangible paper format or stored electronically, and includes without limitation: correspondence, letters, electronic mail, text messages, messaging services (including but not limited to messages on applications such as Telegram, Twitter, WHATSAPP, Facebook, Instagram, Linkedln, Discord, and other services), notes of oral conversations, voice recorded messages, and sound or video recording of voices or images. 10. “Document” or “Documents” is defined to include anything within the definition of “documents” or “electronically stored information” stated in Ohio Rule of Civil Procedure Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 34(A)(1) and any “writings and recordings” as defined by Ohio Rule of Evidence 1001. Without limiting the generality of the foregoing, the terms shall also include all drafts or non-identical copies of documents, including those that include additional handwriting or marginalia. The terms “Document” or “Documents” further refer to or include, without limitation, any writings, correspondence, letters, memoranda, papers, records, reports, facsimiles (faxes), electronic mail, text messages, print outs and copies thereof, notes, summaries of conversations, transcripts, logs, diaries, journals, calendars, photographs, checks, wire transmission reports, ACH transfer reports, statements, contracts, agreements, plans, drawings, spreadsheets, estimates, invoices, messages, instant messages (including over applications such as WHATAPP, Facebook, Linkedln, Signal, Twitter, and Discord), audio recordings, video recordings, or anything else from which information may be obtained. INSTRUCTIONS 1. You are hereby requested to produce all responsive Documents whether in paper form or stored electronically. All electronically stored information shall be produced in its native format. Non-electronically stored information may be produced in either paper form or in electronic format. 2. If documents are produced in electronic format, document numbers and any confidentiality designation should be electronically branded on each produced TIFF images of ESI. 3. Reference to a person shall also include that person’s employees, agents, attorneys, and assigns. 4. Reference to an entity shall also include that entity’s employees, agents, managers, officers, directors, owners, independent contractors, partners, successors, and assigns. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 5. The disjunctive (“or”) shall be deemed to include the conjunctive (“and”), and the conjunctive (“and”) shall be deemed to include the disjunctive (“or”), and the functional word “all” should be interpreted to include “each,” “every,” and “any.” “Any” should also be interpreted to include “all” and “every.” REQUESTS FOR DOCUMENT PRODUCTION 1. All Documents and Communications exchanged between You and Ron Hess, Jr., or other representative, attorney, or agent for Ron Hess, Jr. or Next Lap Holdings, LLC., including but not limited to relating to the following: a. The purchase of all or a portion of the Property . b. The Easement Agreement. c. The Driveway. d. Brian Colleran or the Colleran Family Foundation. e. The Spring or other water sources on the Property. f. The Conservation Easement. g. Any charitable pledge or contribution to the Western Reserve land Conservancy. h. The Lawsuit. i. Any owner or resident of Parcel B. RESPONSE: 2. All Documents and Communications relating to the transfer of the Property from Barbara B. Gratry, individually or as successor trustee under the Stoneybrook Trust to Eastern Ohio Holdings, LLC. RESPONSE: Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 3. All Documents and Communications relating to Brian Colleran or the Colleran Family Foundation and the purchase or sale of the Property, including but not limited to Parcel B and Parcel C or the Easement Agreement. RESPONSE: 4. All Communications and Documents exchanged between You and Barbara Gratry relating to the following: a. The sale of the Property. b. The split of the property formerly identified as or a part of Parcel Number 882-08- 002. c. The sale of Parcels A and D to Next Lap Holdings, LLC. d. The sale of Parcels B and C to the Colleran Family Foundation. e. The Easement Agreement; f. The Conservation Easement. RESPONSE: 5. All Communications and Documents exchanged between You and Eastern Ohio Holdings, LLC, relating to the sale of the Property. RESPONSE: Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 6. All Communications and Documents exchanged between You and Brian Colleran or other representative of the Colleran Family Foundation relating to the Easement Agreement, the Conservation Easement, or the purchase of the Property. RESPONSE: 7. All Documents relating to or which record payments made between Eastern Ohio Holdings, LLC and Barbara Gratry, individually or as Trustee for any trust, for the purchase of the Property. RESPONSE: 8. All Documents relating to payments made by or on behalf of the Colleran Family Foundation for the purchase of Parcels B and C. RESPONSE: 9. All Documents relating to payments made by or on behalf of Next Lap Holdings, LLC for the purchase of Parcels A and D. RESPONSE: 10. All Communications or Documents exchanged with ClimbingBear, LLC or Edmund W. Searby relating to Parcel B. RESPONSE: Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH Respectfully submitted, Edmund W. Searby (0067455) Porter Wright Morris & Arthur llp 950 Main Avenue, Suite 500 Cleveland, Ohio 44113 (216) 443-9000 / Fax (216) 443-9011 esearby@porterwright.com James D. Curphey (0015832) Ryan P. Sherman (0075081) Porter Wright Morris & Arthur llp 41 S. High Street, Suite 2900 Columbus, OH 43215 (614) 227-2184 / Fax (614) 227-2100 jcurphey@porterwright.com rsherman@porterwright. com Attorneys for Plaintiffs ClimbingBear, LLC, and Edmund W. Searby Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH CERTIFICATE OF SERVICE A true and complete copy of the PLAINTIFFS’ FIRST SET OF REQUESTS FOR PRODUCTION DIRECTED TO DEFENDANT EASTERN OHIO HOLDINGS, LLC have been served via email this 29th day of June, 2023 upon: John P. Slagter Anthony R. Vacant! Danielle M. Easton TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 i ohn. slagter @,tu ckerel li s. com tony.vacanti@tuckerelUs.com danielle.easton@tuckerellis.com Attorneys for Defendants Next Lap Holdings, LLC, Ronald C. Hess, Jr., Ronald C. Hess, Sr., and Janet Hess Dolores P. Garcia Sara S. Dorland ULMER & BERNE LLP 1660 W. 2nd St, Suite 1100 Cleveland, Ohio 44113 dgarcia@ulmer.com sdorland@ulmer.com Attorneys for Third-Party Defendant Eastern Ohio Holdings LLC One of the Attorney for Plaintiffs ClimbingBear, LLC, and Edmund W. Searby 22781771v1 Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 9754^4 / Confirmation Nbr. 3005601 / BATCH EXHIBIT Searb^JEdmuncHA^ H From: Linehan, Matthew Sent: Thursday, August 10, 2023 4:48 PM To: Searby, Edmund W.; Curphey, James D.; Sherman, Ryan P.; john.slagter@tuckerellis.com; tony.vacanti@tuckerellis.com; danielle.easton@tuckerellis.com Cc: Garcia, Dolores; Schwallie, Halden Subject: #EXT# Climbingbear LLC v. Next Lap Holdings LLC | EOH_PRODOQ1 Attachments: Attachments.html l#External Email# Counselors, Please find below a Sharefile link to download third-party defendant Eastern Ohio Holding's first production of documents, EOH_PRODOOl.zip. The production is in load-ready TIFF plus native excel format, with a Bates range of EOH_000001 - EOH_001273. Your Sharefile username is your email address. You can set your own Sharefile password upon first logging into the Sharefile site; alternatively, you may reset your password at any time thereafter by using the "Forgot Password" option at the login screen. The Sharefile download link only works for those copied on this email, so if anyone else needs access please let me know. The .zip archive is also encrypted with its own password that I will email you separately. Ulmer & Berne LLP Expires September 9,2023 EOH_PROD001.zip 316 MB Download Attachments If you already have an Ulmer ShareFile account, please click the download link above and log in to access the files. If you have forgotten your password, use the Forgot Password link to reset. If you do not have an Ulmer ShareFile account you will receive a separate email with account activation instructions. If you were not expecting this file or are unsure of the validity, please contact the Ulmer office by calling (216) 583-7000, and ask to speak with the attorney who sent the files for verification. Best Regards, J. Matthew Linehan Ulmer DIRECT: 216.583.7194 DIRECT FAX: 216.583.7195 MOBILE: 216.789.7926 mlinehan@ulmer.com | bio | vcard Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 1 Ulmer & Berne LLP 1660 West 2nd Street, Suite 1100 Cleveland, Ohio 44113-1406 MAIN: 216.583.7000 Ohio Firm or n» Yoar Ulmer.com 2014,2017-2023 oo ULMER & BERNE LLP - CONFIDENTIAL COMMUNICATION This email and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to whom it is addressed. If you are not the intended recipient or the person responsible for delivering the email to the intended recipient, please be advised that you have received this email in error and that any use, dissemination, forwarding, printing, or copying of this email and any file attachments is strictly prohibited. If you have received this email in error, please immediately notify us by telephone at 216.583.7000 or by reply email to the sender. Please delete this email and its attachments from your system and do not retain any copies. You will be reimbursed for reasonable costs incurred in notifying us. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 2 EXHIBIT Edmund Searby October 16, 2023 esearby@portsrwrighLcom www.porterwright.com VIA ELECTRONIC MAIL (dgarcia@ulmer.com) Porter Wright Morris & Arthur LLP 950 Main Avenue Suite 500 Dolores P. Garcia, Esq. Cleveland, OH 44113 Ulmer & Berne LLP Direct: 216.443.2545 1660 W. 2nd Street, Suite 1100 Fax: 216.443.9011 Main: 216.443.9000 Cleveland, OH 44113 Re: Notice of Deposition www.porterwright.com porter weight Dear Lola: CHICAGO CINCINNATI Please find enclosed a 30(B)(5) deposition notice for Eastern Ohio CLEVELAND Holdings, LLC (“Eastern Ohio”). In light of your prior position in COLUMBUS discovery that Western Reserve Land Conservancy should be treated DAYTON as a party to this case (as the sole member of Eastern Ohio), we have NAPLES not served a separate notice pursuant to Rule 45 for the Western PITTSBURGH Reserve Land Conservancy. If there is any misunderstanding on this WASHINGTON, DC point, please advise. Also, this deposition is taken in part because we can locate only a limited number of emails in Eastern Ohio's production. If you believe there is some oversight or misunderstanding in this regards, please consider letting us know in advance of the deposition. Finally, if the date chosen does not work, please provide alternative dates as soon as possible. Thank you in advance for your cooperation. EWS:mav Enclosure cc: Sara S. Dorland, Esq. Ryan Sherman, Esq. 23243541V1 Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CLIMBINGBEAR LLC, ET AL. ) CASE NO. CV-23-975444 ) Plaintiffs, ) JUDGE NANCY A. FUERST ) MAGISTRATE JIM L. JACKSON V. ) ) NEXT LAP HOLDINGS, LLC, ET AL. ) NOTICE OF DEPOSITION OF ) EASTERN OHIO HOLDINGS. Defendants. ) LLC PURSUANT TO OHIO ) RULE (301(B)(5) ) Pursuant to Rule 30(B)(5) of the Ohio Rules of Civil Procedure, please take notice that Plaintiff Edmund W. Searby will take the deposition of an authorized representative or representatives of third-party defendant Eastern Ohio Holdings, LLC, on October 26, 2023 at the offices of Porter, Wright, Morris & Arthur LLP, 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, before an officer duly authorized to administer oaths under the laws of the State of Ohio and recorded by stenographic means. Eastern Ohio shall designate one or more of its proper employees, officers, agents, or other person(s) duly authorized to testify on its behalf as to matters known or available to Eastern Ohio on the topics set forth on Exhibit A. The deposition will be taken as if on cross-examination. You are invited to attend and examine the deponent. 23242611vi Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH Dated: October 16, 2023 Respectfully, submitted. ZsZ Edmund W. Searby__________ Edmund W. Searby (0067455) Porter Wright Morris & Arthur llp 950 Main Avenue, Suite 500 Cleveland, Ohio 44113 (216) 443-9000 / Fax (216) 443-9011 esearbvig.porterwriuht.com Attorney for Plaintiffs ClimbingBear, LLC, and Edmund W. Searby Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH CERTIFICATE OF SERVICE The foregoing Notice Of Deposition Pursuant To Ohio Rule (30)(B)(5) was served this 16th day of October, 2023 via email upon: John P. Slagter Anthony R. Vacant! Danielle M. Easton TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 j phn. slagter «Juckerellis.com tom'.vacanti SentEWfrdnmtofiiertrt«mS?aCI5!53HNOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 1 To: Searby, Edmund W. Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice Counsel, EOH's designee is available the following dates/times (I'm not sure how much time you anticipate needing, but assuming a half day; if you need a full day we will need to look farther out). November 14th - afternoon (after 1pm) November 16th- morning (need to be done by noon) November 20th - afternoon (12-3) Let me know when you would like to proceed. Thanks, Lola Dolores Garcia Ulmer & Berne LLP p 216.583.7430 c 216.973.2701 From: Searby, Edmund W. Sent: Friday, October 20, 2023 2:14 PM To: Garcia, Dolores Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice Will do. I have not seen any others. EDMUND W. SEARBY Porter Wright Morris & Arthur LLP Bio / ESearbv@porterwriqht.com 0:216.443.2545 / F: 216.443.9011 950 Main Avenue, Suite 500 / Cleveland, OH 44113 / MANSFIELD CERTIFIED PLUS We are moving the needle on diversity, equity, and inclusion. Learn more Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 2 From: Garcia, Dolores Sent: Friday, October 20, 2023 1:28 PM To: Vacant!, Anthony R. ; Searby, Edmund W. Cc: Dorland, Sara : Sherman, Ryan P. : Slagter, John P. ; Easton, Danielle M. Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice I will provide multiple dates as soon as I have them. Please also make sure that we are included on emails re: other depo notices; I haven't seen any others. Thanks, Lola Dolores Garcia Ulmer & Berne LLP p 216.583.7430 C 216.973.2701 From: Vacanti, Anthony R. Sent: Friday, October 20, 2023 1:26 PM To: Searby, Edmund W. ; Garcia, Dolores Cc: Dorland, Sara ; Sherman, Ryan P. : Slagter, John P. : Easton, Danielle M. Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice Thank you. If you can please provide several different dates, that would be helpful for scheduling purposes. Anthony R. Vacanti | Attorney | Tucker Ellis LLP 950 Main Avenue, Suite 11001 Cleveland, OH 44113-7213 Direct: 216-696-2093 | Fax: 216-592-5009 | Mobile: 216-385-0409 tony.vacanti@tuckerellis.com Online biography - Anthony R. Vacanti tuckerellis.com Cleveland | Chicago | Columbus | Los Angeles | San Francisco | St. Louis | Washington D.C. This e-mail is sent by the law firm of Tucker Ellis LLP and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and notify us immediately by return email. From: Searby, Edmund W. Sent: Friday, October 20, 2023 1:24 PM To: 'Garcia, Dolores' Cc: Dorland, Sara ; Sherman, Ryan P. ; Vacanti, Anthony R. ; Slagter, John P. ; Easton, Danielle M. ; Searby, Edmund W. Subject: RE: #EXT# RE: Letter to Dolores Garcia and Notice <« EXTERNAL EMAIL »> Lola, Following up regarding alternative dates? And copying the Tucker Ellis lawyers so they are in the loop. BestEiectronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 3 EDMUND W. SEARBY Porter Wright Morris & Arthur LLP Bio / ESearbv@porterwright.com 0:216.443.2545 / F: 216.443.9011 950 Main Avenue, Suite 500 / Cleveland, OH 44113 / MANSFIELD CERTIFIED PLUS We are moving the needle on diversity, equity, and inclusion. Learn more From: Garcia, Dolores Sent: Tuesday, October 17, 2023 10:07 PM To: Searby, Edmund W. Cc: Dorland, Sara : Sherman, Ryan P. Subject: #EXT# RE: Letter to Dolores Garcia and Notice #External Email# Ed, I am not available October 26, but we will provide some alternate dates. Best, Lola Dolores Garcia Ulmer & Berne LLP p 216.583.7430 c 216.973.2701 From: Searby, Edmund W. Sent: Monday, October 16, 2023 5:26 PM To: Garcia, Dolores Cc: Dorland, Sara ; Sherman, Ryan P. Subject: Letter to Dolores Garcia and Notice Lola, Please see the attached letter and notice. Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 4 Best, EDMUND W. SEARBY Porter Wright Morris & Arthur LLP Bio / ESearbv@porterwriqht.com 0:216.443.2545 / F: 216.443.9011 950 Main Avenue, Suite 500 / Cleveland, OH 44113 I MANSFIELD CERTIFIED PLUS We are moving the needle on diversity, equity, and inclusion. Learn more NOTICE FROM PORTER WRIGHT MORRIS & ARTHUR LLP: This message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read, print or forward it. Please reply to the sender that you have received the message in error. Then delete it. Thank you. END OF NOTICE Electronically Filed 10/31/2023 16:53 / NOTICE / CV 23 975444 / Confirmation Nbr. 3005601 / BATCH 5 EXHIBIT Searby, Edmund W. From: Garcia, Dolores Sent: Monday, October 30, 2023 3:13 PM To: Searby, Edmund W.; 'Vacant!, Anthony R.' Cc: 'Easton, Danielle M.'; Dorland, Sara; Sherman, Ryan P.; Curphey, James D. Subject: #EXT# RE: 30b5 Deposition and Scheduling Ed and Tony, There will be no supplemental production from EOH. I did notice that we have not produced a privilege log yet, and we will provide that this week. Likewise, we do not have earlier dates to offer. We a