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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland. Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
August 4,2023 12:08
By: BRIAN R. GUTKOSKI0076411
Confirmation Nbr. 2927980
DAVID HOPKINS CV 22 972339
vs.
Judge: JOHN P. O DONNELL
GREATER CLEVELAND REGIONAL TRANSIT
AUTHORITY
Pages Filed: 4
Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB
BG/TS: EV2019089466
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DAVID HOPKINS ) CASE NO. CV-22-972339
)
Plaintiff, ) JUDGE JOHN P. O'DONNELL
)
vs. )
) DEFENDANT GREATER CLEVELAND
GREATER CLEVELAND REGIONAL ) REGIONAL TRANSIT AUTHORITY’S
TRANSIT AUTHORITY, ) RESPONSE TO PLAINTIFF’S VIDEO
) TRIAL DEPOSITION NOTICES
Defendant. )
Now comes the Defendant, Greater Cleveland Regional Transit Authority
("GCRTA"), by and through its attorney, and hereby responds to Plaintiff's videotaped,
trial deposition notices filed on July 31, 2023. These notices were filed on the same day
this Court previously granted GCRTA to move for summary judgment. (See 7/16/2023
Docket Entry that granted GCRTA's “Motion for Enlargement of Time to File Dispositive
Motions Up to And Including July 31, 2023”).
As briefed in GCRTA's 7/28/2023 motion to reconsider, “[f]ailure to permit GCRTA
to conduct discovery depositions of all experts that Plaintiff has identified to date is
reversible error.” GCRTA's 7/28/2023 Mot. to Reconsider at 9. The 8th District has held:
Ohio discovery rules, like their federal model, are designed to favor the
fullest opportunity to perform complete discovery. A trial court does,
however, have discretion in controlling the discovery process.
Nevertheless, such discretion is not without limits, and an appellate court
will reverse a trial court's decision to extinguish a party's right to discovery
if such a decision is improvident and affects the discovering party's
substantial rights.
Est. of Wiedemer v. Cleveland Yachting Club Inc., 8th Dist. Nos. 110432/110681, 2022-
Ohio-20, 13 (internal citations omitted).
Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB
"[T]he party seeking immediate relief must demonstrate that appeal after final
judgment represents an inadequate remedy." Blue Techs. Smart Sols., LLC v. Ohio
Collaborative Learning Sols., Inc., 2022-Ohio-1935, 46, appeal not allowed Blue Techs.
Smart Sols., L.L.C. v. Ohio Collaborative Learning Sols., Inc., 168 Ohio St. 3d 1406, 195
N.E.3d 1047.
GCRTA has a right to conduct discovery depositions of plaintiff’s experts before a
trial deposition is recorded for potential presentation to a jury in the future. The Eighth
District, for half a century, has held that parties are entitled to discovery depositions to
prevent “trial by ambush.” GCRTA would be highly prejudiced if these “trial depositions”
are allowed to proceed. “The court labored under the mistaken belief that cross
examination at trial served the same purpose as a pretrial deposition. When a complex
fundamental issue is the object of civil discovery, expediency alone is not a sufficient
ground for a judge to sua sponte terminate discovery. Furthermore, cross examination at
trial is not an adequate substitute for pretrial discovery. The purpose of discovery is to aid
a party in his preparation of the case prior to trial. The opportunity for such preparation is
designed to facilitate an orderly and cogent presentation by both parties in front of the
trier of fact. Cross-examination before the trier of fact is only meaningful when the cross
examiner has an adequate opportunity to prepare his questions prior to trial.” Rossman
v. Rossman, 47 Ohio App. 2d 103, 108-09, 352 N.E.2d 149, 153 (1975)(Italics added).
For these reasons, if Plaintiff’s “noticed” video depositions go forward as noticed,
Plaintiff is simply wasting resources. Denial of GCRTA’s efforts to obtain pretrial
discovery depositions of Plaintiff’s expert(s) is likewise a final appealable order and
reviewable on GCRTA’s potential R.C. 2744.02(C) interlocutory appeal, which GCRTA
Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 2
will take in lieu of trial should this Court deny GCRTA summary judgment.
GCRTA's timely filed MSJ requested a modified response time of August 7, 2023.
See 7/31/2023 MSJ at 26. If this Court grants GCRTA summary judgment, and that
decision is affirmed on appeal, then GCRTA's discovery issues become moot. K&D
Mgmt., L.L.C. v. Jones, 8th Dist. No. 110262, 2021-Ohio-4310, 61 (...further discovery
and the proposed amendments to Jones's answer would not have changed the summary
judgment outcome.”) GCRTA would respectfully request clarification on these issues to
spare Plaintiff from needlessly wasting all parties' respective resources conducting
purported “trial depositions” of expert(s), when there can be no “trial” on August 16, 2023.
For these reasons, the court should note that Plaintiff's opposition to GCRTA's
MSJ is due on August 7, 2023 and the August 16 “trial” is converted to oral argument on
GCRTA's MSJ. GCRTA hereby objects to purported “trial depositions” of Plaintiff's
experts next week, and conducting them, prior to discovery depositions is error. See Civ.
R. 1(B)(providing, “These [civil] rules shall be...applied to effect just results
. unnecessary expense and all other impediments to .. justice.”)
Respectfully submitted,
JANET E. BURNEY,
General Counsel-Deputy GM for Legal Affairs
BY: /s/ Brian R. Gutkoski
BRIAN R. GUTKOSKI (Reg. No. 0076411)
Associate Counsel II
1240 W. 6th Street
Cleveland, Ohio 44113
Telephone: (216) 356-3092
Facsimile: (216) 350-5296
E-Mail: brian.gutkoski@gcrta.org
litigation@gcrta.org
Attorney for Defendant Greater Cleveland
Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 3
Regional Transit Authority
CERTIFICATE OF SERVICE
The foregoing RESPONSE was forwarded electronically by the court's filing
system on this 4th day of August 2023 to all parties/counsel of record.
/s/ Brian R. Gutkoski_______________
BRIAN R. GUTKOSKI
Attorney for Defendant GCRTA
Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 4
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland. Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION August 4,2023 12:08 By: BRIAN R. GUTKOSKI0076411 Confirmation Nbr. 2927980 DAVID HOPKINS CV 22 972339 vs. Judge: JOHN P. O DONNELL GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY Pages Filed: 4 Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB BG/TS: EV2019089466 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO DAVID HOPKINS ) CASE NO. CV-22-972339 ) Plaintiff, ) JUDGE JOHN P. O'DONNELL ) vs. ) ) DEFENDANT GREATER CLEVELAND GREATER CLEVELAND REGIONAL ) REGIONAL TRANSIT AUTHORITY’S TRANSIT AUTHORITY, ) RESPONSE TO PLAINTIFF’S VIDEO ) TRIAL DEPOSITION NOTICES Defendant. ) Now comes the Defendant, Greater Cleveland Regional Transit Authority ("GCRTA"), by and through its attorney, and hereby responds to Plaintiff's videotaped, trial deposition notices filed on July 31, 2023. These notices were filed on the same day this Court previously granted GCRTA to move for summary judgment. (See 7/16/2023 Docket Entry that granted GCRTA's “Motion for Enlargement of Time to File Dispositive Motions Up to And Including July 31, 2023”). As briefed in GCRTA's 7/28/2023 motion to reconsider, “[f]ailure to permit GCRTA to conduct discovery depositions of all experts that Plaintiff has identified to date is reversible error.” GCRTA's 7/28/2023 Mot. to Reconsider at 9. The 8th District has held: Ohio discovery rules, like their federal model, are designed to favor the fullest opportunity to perform complete discovery. A trial court does, however, have discretion in controlling the discovery process. Nevertheless, such discretion is not without limits, and an appellate court will reverse a trial court's decision to extinguish a party's right to discovery if such a decision is improvident and affects the discovering party's substantial rights. Est. of Wiedemer v. Cleveland Yachting Club Inc., 8th Dist. Nos. 110432/110681, 2022- Ohio-20, 13 (internal citations omitted). Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB "[T]he party seeking immediate relief must demonstrate that appeal after final judgment represents an inadequate remedy." Blue Techs. Smart Sols., LLC v. Ohio Collaborative Learning Sols., Inc., 2022-Ohio-1935, 46, appeal not allowed Blue Techs. Smart Sols., L.L.C. v. Ohio Collaborative Learning Sols., Inc., 168 Ohio St. 3d 1406, 195 N.E.3d 1047. GCRTA has a right to conduct discovery depositions of plaintiff’s experts before a trial deposition is recorded for potential presentation to a jury in the future. The Eighth District, for half a century, has held that parties are entitled to discovery depositions to prevent “trial by ambush.” GCRTA would be highly prejudiced if these “trial depositions” are allowed to proceed. “The court labored under the mistaken belief that cross examination at trial served the same purpose as a pretrial deposition. When a complex fundamental issue is the object of civil discovery, expediency alone is not a sufficient ground for a judge to sua sponte terminate discovery. Furthermore, cross examination at trial is not an adequate substitute for pretrial discovery. The purpose of discovery is to aid a party in his preparation of the case prior to trial. The opportunity for such preparation is designed to facilitate an orderly and cogent presentation by both parties in front of the trier of fact. Cross-examination before the trier of fact is only meaningful when the cross examiner has an adequate opportunity to prepare his questions prior to trial.” Rossman v. Rossman, 47 Ohio App. 2d 103, 108-09, 352 N.E.2d 149, 153 (1975)(Italics added). For these reasons, if Plaintiff’s “noticed” video depositions go forward as noticed, Plaintiff is simply wasting resources. Denial of GCRTA’s efforts to obtain pretrial discovery depositions of Plaintiff’s expert(s) is likewise a final appealable order and reviewable on GCRTA’s potential R.C. 2744.02(C) interlocutory appeal, which GCRTA Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 2 will take in lieu of trial should this Court deny GCRTA summary judgment. GCRTA's timely filed MSJ requested a modified response time of August 7, 2023. See 7/31/2023 MSJ at 26. If this Court grants GCRTA summary judgment, and that decision is affirmed on appeal, then GCRTA's discovery issues become moot. K&D Mgmt., L.L.C. v. Jones, 8th Dist. No. 110262, 2021-Ohio-4310, 61 (...further discovery and the proposed amendments to Jones's answer would not have changed the summary judgment outcome.”) GCRTA would respectfully request clarification on these issues to spare Plaintiff from needlessly wasting all parties' respective resources conducting purported “trial depositions” of expert(s), when there can be no “trial” on August 16, 2023. For these reasons, the court should note that Plaintiff's opposition to GCRTA's MSJ is due on August 7, 2023 and the August 16 “trial” is converted to oral argument on GCRTA's MSJ. GCRTA hereby objects to purported “trial depositions” of Plaintiff's experts next week, and conducting them, prior to discovery depositions is error. See Civ. R. 1(B)(providing, “These [civil] rules shall be...applied to effect just results . unnecessary expense and all other impediments to .. justice.”) Respectfully submitted, JANET E. BURNEY, General Counsel-Deputy GM for Legal Affairs BY: /s/ Brian R. Gutkoski BRIAN R. GUTKOSKI (Reg. No. 0076411) Associate Counsel II 1240 W. 6th Street Cleveland, Ohio 44113 Telephone: (216) 356-3092 Facsimile: (216) 350-5296 E-Mail: brian.gutkoski@gcrta.org litigation@gcrta.org Attorney for Defendant Greater Cleveland Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 3 Regional Transit Authority CERTIFICATE OF SERVICE The foregoing RESPONSE was forwarded electronically by the court's filing system on this 4th day of August 2023 to all parties/counsel of record. /s/ Brian R. Gutkoski_______________ BRIAN R. GUTKOSKI Attorney for Defendant GCRTA Electronically Filed 08/04/2023 12:08 / BRIEF / CV 22 972339 / Confirmation Nbr. 2927980 / CLMHB 4