Preview
Motion No. 5129249
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
November 6,2023 10:29
By: HUNTER G. CAVELL 0090567
Confirmation Nbr. 3009742
SINGERMAN, MILLS, DESBERG & KAUNTZ CO., CV 21 955301
ERA.
vs.
Judge: KATHLEEN ANN SUTULA
DENVER C. BARRY
Pages Filed: 7
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301 / Confirmation Nbr. 3009742 / CLDLJ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
SINGERMAN, MILLS, DESBERG & KAUNTZ ) CASE NO. CV-21-955301
CO., L.P.A. )
)
Plaintiff ) JUDGE: KATHLEEN ANN SUTULA
)
vs. ) PLAINTIFF’S MOTION TO QUASH
) SUBPOENA
DENVER BARRY )
)
Defendant )
Now comes Plaintiff, Singerman, Mills, Desberg & Kauntz Co., L.P.A. (hereinafter
“Plaintiff”), by and through undersigned counsel, and pursuant to Civ.R. 45, moves to quash
Defendant Denver Berry’s (hereinafter “Defendant”) subpoena. For cause, a subpoena cannot be
used to obtain documents from a party, the subpoena was not properly served, the documents
requested are subject to attorney-client privilege, and the subpoena subjects Plaintiff to an undue
burden.
STATEMENT OF FACTS
On or around Thursday, November 2, 2023, Defendant sent Plaintiff’s attorney a
subpoena (“Subpoena”), via electronic mail commanding that Plaintiff produce “all contracts,
letters, agreements, emails, correspondence with Kimberly Barry concerning the Musca
Properties case. And all contracts, letters, agreements with Denver Barry concerning the Musca
Properties case. And all work product performed on behalf of Denver Barry relating to Musca
Properties” on or before November 10, 2023. A true and accurate copy of the Subpoena is
attached hereto and incorporated herein as Exhibit “A”.
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ
Plaintiff's counsel has discussed with Defendant the proper way to obtain documents
from Plaintiff: through discovery. Defendant has failed to do so and is also seeking privileged
information concerning the representation of non-party Kimberly Barry, Defendant’s daughter.
LAW AND ARGUMENT
A. Standard of Review
A court “shall quash or modify a subpoena” if it “[r]equires disclosure of privileged or
otherwise protected matter and no exception or waiver applies.” Civ.R. 45(C)(3)(b). Rule
45(C)(3)(d) further provides that a subpoena should be quashed if it “subjects a person to an
undue burden.” When a motion is made asserting an undue burden, the subpoenaing party must
“show a substantial need for the testimony or material that cannot be otherwise met without
undue hardship ***.” Civ.R. 45(C)(5). Because Civ. R. 45 grants lawyers the ability to exert
power over non-parties, an even closer scrutiny is appropriate in the context of third-party
subpoenas, especially those issued to counsel of record in the matter. See Neftzer v. Neftzer, 140
Ohio App.3d 618, 621 (12th Dist. 2000) (“Providing attorneys authority to issues subpoenas ***
constitute[s] a substantial empowerment of the bar. ‘[N]ecessarily accompanying the evolution
of this power of the lawyer as an officer of the court is the development of increased
responsibility and liability for them issue of this power.’” It is beyond dispute that subpoenas
cannot be issued for the purpose of harassment. See Office of Disciplinary Counsel v.
Baumgartner, 100 Ohio St.3d 41, 2003-Ohio-4756, 796 N.E.2d 495 29, 51.
B. Civ.R. 45 is not the Proper way to Obtain Documents from Plaintiff
As an initial matter, pursuant to Civ.R. 45(A)(1), “A subpoena may not be used to obtain
the attendance of a party or the production of documents by a party in discovery. Rather, ...
documents or electronically stored information may be obtained from a party in discovery only
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ
pursuant to Civ.R. 34.” (Emphasis added). Here, Defendant improperly emailed a subpoena to
Plaintiff via its counsel. This is not proper, and constitutes harassment. For this reason, the
Subpoena should be quashed.
C. The Subpoena was not Properly Served
Secondly, Defendant has not properly served the improper Subpoena. Pursuant to Civ.R.
45(B), “[a] subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a
deputy of any, by an attorney at law, or by any other person designated by order of court who is
not a party and is not less than eighteen years of age.” Defendant does not meet these criteria.
Moreover, “[s]ervice of a subpoena upon a person named therein shall be made by delivering a
copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the
person’s usual place of residence, or by placing a sealed envelope containing the subpoena in the
United States mail as certified or express mail return receipt requested with instructions to the
delivering postal authority to show to whom delivered, date of delivery and address where
delivered ... . The person responsible for serving the subpoena shall file a return of the subpoena
with the clerk.” Email is not good service. Defendant failed to file a return of the Subpoena with
the Clerk. For these reasons, the Subpoena should be quashed.
D. The Attorney-Client Privilege Bars the Production of the Requested
Communications Between Plaintiff and Kimberly Barry.
Privilege is the cornerstone upon which the attorney-client relationship is founded.
Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.E.2d 584. Attorney
client privilege applies to pertinent communications between an attorney and client and generally
can be waived only by the client. Estate of Mikulski v. Cleveland Elec. Illum. Co., 8th Dist.
Cuyahoga No. 96748, 2012-Ohio-588, 15.
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ
The communications at issue are clearly subject to attorney-client privilege. Instead of
directing his inquiry directly to his daughter, Kimberly Barry, Defendant instead chose the route
of harassment. The privilege is Kimberly Barry’s to waive. Defendant should argue the merits of
this discovery with Kimberly Barry, not attempt to compel the undersigned to breach attorney
client privilege and put his law license at risk.
E. The Subpoena Places an Undue Burden on Plaintiff
The information sought by Defendant could easily be obtained by: 1) asking his daughter
for the information on her; and, 2) reviewing his own files for the information on Defendant.
Instead, Defendant has chosen to improperly use the subpoena process to obtain this information.
This places Plaintiff in an undue burden to produce information that is equally accessible to
Defendant via other means. “A party ... responsible for the issuance and service of a subpoena
shall take reasonable steps to avoid imposing undue burden or expense on a person subject to
that subpoena.” Civ.R. 45(C)(1). Here, such steps were not taken.
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ
CONCLUSION
Accordingly, based on the foregoing and in the interests of justice, and for good cause
shown, Plaintiff, Singerman, Mills, Desberg & Kauntz Co., L.P.A., respectfully requests that this
Honorable Court quash Defendant’s Subpoena.
Respectfully submitted,
/s/ Hunter G. Cavell______
Egon P. Singerman (0040458)
Hunter G. Cavell (0090567)
Attorney for Plaintiff
30625 Solon Road, Suite C
Cleveland, Ohio 44139
216-360-9300
216-360-9712 Fax
esingerman@esingerman.com
hcavell@esingerman.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
A true and accurate copy of the foregoing has been duly served upon all parties of record
through the Cuyahoga County Clerk of Courts e-Filing System this 6th day of November, 2023.
/s/ Hunter G. Cavell______
Egon P. Singerman (0040458)
Hunter G. Cavell (0090567)
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ
NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1.
IN THE COURT OF COMMON PLEAS
SUBPOENA CIVIL RULE 45
THE STATE OF OHIO
ss.
Cuyahoga County
Plaintiff/Petitioner
No.CV - Si-q. SSgol
vs.
T^e.nver C-- __________
Judge Su't'ulcc
Defendant/Respondent
To f j Q’z i € Its, Des ber^ 4- ^^un-fz
Co,. lPA^_______ _ ____________________ .______________________________
YOU ARE COMMAN DED 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
the law.Center-Court
of Justice Toweris required on theCourthouse
Your appearance of Square o'clock County
at Cuyahoga Courthouse
.M. in Courtroom
N o1200
. Ontario _
Street
of the: 310 W. Lakeside Avenue One Lakeside Avenue
Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113
YOU ARE COMMAN DED to appear at the place, date and time specified below to testify at the taking of deposition
in the above case.
PLACE OF DEPOSITION DATE TIME
^1 YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following
7\ documents or objects at the place, date and time specified below (list documents or objects):
_ fill cwS'S fci^beely
U/4h Denver Barry concerAm^ ?vopac^*t£s casc,
, ow kekq Denyer B^rry Cn > StMaC, IO4 Zp2£ SfM
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.
ATTORNEY NAME ADDRESS
THE STATE OF OHIO
ss.
Cuyahoga County
Affidavit of Service of Subpoena by Sheriff or Officer, Attorney or Private Person
On the day of , 20
I served this Subpoena on the within named:
as follows:
SHERIFF'S FEES
Service on $ By
Deputy Sheriff/Attorney
Copy
Miles Travel Subscribed and sworn to before me, a
Return
$ This day of , 20 _
Witness entitled to miles
RULE 45. RULES OF CIVIL PROCEDURE, PARTS C & D
(C) Protection of persons subject to subpoenas. (1) A party or an attorney responsible (D) Duties in responding to subpoena. (1) A person responding to a subpoena to
for the issuance and service of a subpoena shall take reasonable steps to avoid produce documents shall, at the person's option, produce them as they are kept in
imposing undue burden or expense on a person subject to that subpoena. (2)(a) A the usual course of business or organized and labeled to correspond with the
person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this categories in the subpoena. A person producing documents or electronically stored
rule need not appear in person at the place of production or inspection unless information pursuant to a subpoena forthem shall permit their inspection and
commanded to attend and give testimony at a deposition, hearing, or trial, (b) Subject copying by all parties present at the time and place set in the subpoena for inspection
to division and copying. (2) If a request does not specify the form or forms for producing
(D) (2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), electronically stored information, a person responding to a subpoena may produce
(iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or the information in a form or forms in which the information is ordinarily maintained if
before the time specified forcompliance if such time is less than fourteen days after that form is reasonably useable, or in any form that is reasonably useable. Unless
service, serve upon the party or attorney designated in the subpoena written ordered by the court or agreed to by the person subpoenaed, a person responding to
objections to production. If objection is made, the party serving the subpoena shall a subpoena need not produce the same electronically stored information in more
not be entitled to production except pursuant to an order of the court by which the than one form. (3) A person need not provide discovery of electronically stored
subpoena was issued. If objection has been made, the party serving the subpoena, information when the production imposes undue burden or expense. On motion to
upon notice to the person commanded to produce, may move at any time for an order compel discovery or for a protective order, the person from whom electronically
to compel the production. An order to compel production shall protect any person stored information is sought must show that the information is not reasonably
who is not a party or an officer of a party from significant expense resulting from the accessible because of undue burden or expense. If a showing of undue burden or
production commanded. (3) On timely motion, the court from which the subpoena expense is made, the court may nonetheless order production of electronically stored
was issued shall quash or modify the subpoena, or order appearance or production information if the requesting party shows good cause. The court shall consider the
only under specified conditions, if the subpoena does any of the following: (a) Fails to factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering
allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise production of electronically stored information, the court may specify the format,
protected matter and no exception or waiver applies; (c) Requires disclosure of a fact extent, timing, allocation of expenses and other conditions for the discovery of the
known or opinion held by an expert not retained or specially employed by any party in electronically stored information. (4) When information subject to a subpoena is
anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the withheld on a claim that it is privileged or subject to protection as trial preparation
fact or opinion does not describe specific events or occurrences in dispute and results materials, the claim shall be made expressly and shall be supported by a description of
from study by that expert that was not made at the request of any party; (d) Subjects the nature of the documents, communications, or things not produced that is
a person to undue burden. sufficient to enable the demanding party to contest the claim. (5) If information is
(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting produced in response to a subpoena that is subject to a claim of privilege or of
discovery under this rule shall attempt to resolve any claim of undue burden through protection as trial-preparation material, the person making the claim may notify any
discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of party that received the information of the claim and the basis for it. After being
this rule shall be supported by an affidavit of the subpoenaed person or a certificate of notified, a receiving party must promptly return, sequester, or destroy the specified
that person's attorney of the efforts made to resolve any claim of undue burden. (5) If information and any copies within the party's possession, custody or control. A party
a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash may not use or disclose the information until the claim is resolved. A receiving party
or modify the subpoena unless the party in whose behalf the subpoena is issued may promptly present the information to the court under seal for a determination of
shows the claim of privilege or of protection as trial-preparation material. If the receiving
a substantial need for the testimony or material that cannot be otherwise met without party disclosed the information before being notified, it must take reasonable steps to
undue hardship and assures that the person to whom the subpoena is addressed will retrieve it. The person who producedthe information must preserve the information
be reasonably compensated. until the claim is resolved.
Revised As Of 10/2018
EXHIBIT A
Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301 / Confirmation Nbr. 3009742 / CLDLJ
Preview
Motion No. 5129249 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... November 6,2023 10:29 By: HUNTER G. CAVELL 0090567 Confirmation Nbr. 3009742 SINGERMAN, MILLS, DESBERG & KAUNTZ CO., CV 21 955301 ERA. vs. Judge: KATHLEEN ANN SUTULA DENVER C. BARRY Pages Filed: 7 Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301 / Confirmation Nbr. 3009742 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO SINGERMAN, MILLS, DESBERG & KAUNTZ ) CASE NO. CV-21-955301 CO., L.P.A. ) ) Plaintiff ) JUDGE: KATHLEEN ANN SUTULA ) vs. ) PLAINTIFF’S MOTION TO QUASH ) SUBPOENA DENVER BARRY ) ) Defendant ) Now comes Plaintiff, Singerman, Mills, Desberg & Kauntz Co., L.P.A. (hereinafter “Plaintiff”), by and through undersigned counsel, and pursuant to Civ.R. 45, moves to quash Defendant Denver Berry’s (hereinafter “Defendant”) subpoena. For cause, a subpoena cannot be used to obtain documents from a party, the subpoena was not properly served, the documents requested are subject to attorney-client privilege, and the subpoena subjects Plaintiff to an undue burden. STATEMENT OF FACTS On or around Thursday, November 2, 2023, Defendant sent Plaintiff’s attorney a subpoena (“Subpoena”), via electronic mail commanding that Plaintiff produce “all contracts, letters, agreements, emails, correspondence with Kimberly Barry concerning the Musca Properties case. And all contracts, letters, agreements with Denver Barry concerning the Musca Properties case. And all work product performed on behalf of Denver Barry relating to Musca Properties” on or before November 10, 2023. A true and accurate copy of the Subpoena is attached hereto and incorporated herein as Exhibit “A”. Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ Plaintiff's counsel has discussed with Defendant the proper way to obtain documents from Plaintiff: through discovery. Defendant has failed to do so and is also seeking privileged information concerning the representation of non-party Kimberly Barry, Defendant’s daughter. LAW AND ARGUMENT A. Standard of Review A court “shall quash or modify a subpoena” if it “[r]equires disclosure of privileged or otherwise protected matter and no exception or waiver applies.” Civ.R. 45(C)(3)(b). Rule 45(C)(3)(d) further provides that a subpoena should be quashed if it “subjects a person to an undue burden.” When a motion is made asserting an undue burden, the subpoenaing party must “show a substantial need for the testimony or material that cannot be otherwise met without undue hardship ***.” Civ.R. 45(C)(5). Because Civ. R. 45 grants lawyers the ability to exert power over non-parties, an even closer scrutiny is appropriate in the context of third-party subpoenas, especially those issued to counsel of record in the matter. See Neftzer v. Neftzer, 140 Ohio App.3d 618, 621 (12th Dist. 2000) (“Providing attorneys authority to issues subpoenas *** constitute[s] a substantial empowerment of the bar. ‘[N]ecessarily accompanying the evolution of this power of the lawyer as an officer of the court is the development of increased responsibility and liability for them issue of this power.’” It is beyond dispute that subpoenas cannot be issued for the purpose of harassment. See Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003-Ohio-4756, 796 N.E.2d 495 29, 51. B. Civ.R. 45 is not the Proper way to Obtain Documents from Plaintiff As an initial matter, pursuant to Civ.R. 45(A)(1), “A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, ... documents or electronically stored information may be obtained from a party in discovery only Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ pursuant to Civ.R. 34.” (Emphasis added). Here, Defendant improperly emailed a subpoena to Plaintiff via its counsel. This is not proper, and constitutes harassment. For this reason, the Subpoena should be quashed. C. The Subpoena was not Properly Served Secondly, Defendant has not properly served the improper Subpoena. Pursuant to Civ.R. 45(B), “[a] subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age.” Defendant does not meet these criteria. Moreover, “[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person’s usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered ... . The person responsible for serving the subpoena shall file a return of the subpoena with the clerk.” Email is not good service. Defendant failed to file a return of the Subpoena with the Clerk. For these reasons, the Subpoena should be quashed. D. The Attorney-Client Privilege Bars the Production of the Requested Communications Between Plaintiff and Kimberly Barry. Privilege is the cornerstone upon which the attorney-client relationship is founded. Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.E.2d 584. Attorney client privilege applies to pertinent communications between an attorney and client and generally can be waived only by the client. Estate of Mikulski v. Cleveland Elec. Illum. Co., 8th Dist. Cuyahoga No. 96748, 2012-Ohio-588, 15. Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ The communications at issue are clearly subject to attorney-client privilege. Instead of directing his inquiry directly to his daughter, Kimberly Barry, Defendant instead chose the route of harassment. The privilege is Kimberly Barry’s to waive. Defendant should argue the merits of this discovery with Kimberly Barry, not attempt to compel the undersigned to breach attorney client privilege and put his law license at risk. E. The Subpoena Places an Undue Burden on Plaintiff The information sought by Defendant could easily be obtained by: 1) asking his daughter for the information on her; and, 2) reviewing his own files for the information on Defendant. Instead, Defendant has chosen to improperly use the subpoena process to obtain this information. This places Plaintiff in an undue burden to produce information that is equally accessible to Defendant via other means. “A party ... responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Civ.R. 45(C)(1). Here, such steps were not taken. Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ CONCLUSION Accordingly, based on the foregoing and in the interests of justice, and for good cause shown, Plaintiff, Singerman, Mills, Desberg & Kauntz Co., L.P.A., respectfully requests that this Honorable Court quash Defendant’s Subpoena. Respectfully submitted, /s/ Hunter G. Cavell______ Egon P. Singerman (0040458) Hunter G. Cavell (0090567) Attorney for Plaintiff 30625 Solon Road, Suite C Cleveland, Ohio 44139 216-360-9300 216-360-9712 Fax esingerman@esingerman.com hcavell@esingerman.com Attorneys for Plaintiff CERTIFICATE OF SERVICE A true and accurate copy of the foregoing has been duly served upon all parties of record through the Cuyahoga County Clerk of Courts e-Filing System this 6th day of November, 2023. /s/ Hunter G. Cavell______ Egon P. Singerman (0040458) Hunter G. Cavell (0090567) Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301/ Confirmation Nbr. 3009742 / CLDLJ NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1. IN THE COURT OF COMMON PLEAS SUBPOENA CIVIL RULE 45 THE STATE OF OHIO ss. Cuyahoga County Plaintiff/Petitioner No.CV - Si-q. SSgol vs. T^e.nver C-- __________ Judge Su't'ulcc Defendant/Respondent To f j Q’z i € Its, Des ber^ 4- ^^un-fz Co,. lPA^_______ _ ____________________ .______________________________ YOU ARE COMMAN DED 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 the law.Center-Court of Justice Toweris required on theCourthouse Your appearance of Square o'clock County at Cuyahoga Courthouse .M. in Courtroom N o1200 . Ontario _ Street of the: 310 W. Lakeside Avenue One Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113 YOU ARE COMMAN DED to appear at the place, date and time specified below to testify at the taking of deposition in the above case. PLACE OF DEPOSITION DATE TIME ^1 YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following 7\ documents or objects at the place, date and time specified below (list documents or objects): _ fill cwS'S fci^beely U/4h Denver Barry concerAm^ ?vopac^*t£s casc, , ow kekq Denyer B^rry Cn > StMaC, IO4 Zp2£ SfM 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. ATTORNEY NAME ADDRESS THE STATE OF OHIO ss. Cuyahoga County Affidavit of Service of Subpoena by Sheriff or Officer, Attorney or Private Person On the day of , 20 I served this Subpoena on the within named: as follows: SHERIFF'S FEES Service on $ By Deputy Sheriff/Attorney Copy Miles Travel Subscribed and sworn to before me, a Return $ This day of , 20 _ Witness entitled to miles RULE 45. RULES OF CIVIL PROCEDURE, PARTS C & D (C) Protection of persons subject to subpoenas. (1) A party or an attorney responsible (D) Duties in responding to subpoena. (1) A person responding to a subpoena to for the issuance and service of a subpoena shall take reasonable steps to avoid produce documents shall, at the person's option, produce them as they are kept in imposing undue burden or expense on a person subject to that subpoena. (2)(a) A the usual course of business or organized and labeled to correspond with the person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this categories in the subpoena. A person producing documents or electronically stored rule need not appear in person at the place of production or inspection unless information pursuant to a subpoena forthem shall permit their inspection and commanded to attend and give testimony at a deposition, hearing, or trial, (b) Subject copying by all parties present at the time and place set in the subpoena for inspection to division and copying. (2) If a request does not specify the form or forms for producing (D) (2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), electronically stored information, a person responding to a subpoena may produce (iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or the information in a form or forms in which the information is ordinarily maintained if before the time specified forcompliance if such time is less than fourteen days after that form is reasonably useable, or in any form that is reasonably useable. Unless service, serve upon the party or attorney designated in the subpoena written ordered by the court or agreed to by the person subpoenaed, a person responding to objections to production. If objection is made, the party serving the subpoena shall a subpoena need not produce the same electronically stored information in more not be entitled to production except pursuant to an order of the court by which the than one form. (3) A person need not provide discovery of electronically stored subpoena was issued. If objection has been made, the party serving the subpoena, information when the production imposes undue burden or expense. On motion to upon notice to the person commanded to produce, may move at any time for an order compel discovery or for a protective order, the person from whom electronically to compel the production. An order to compel production shall protect any person stored information is sought must show that the information is not reasonably who is not a party or an officer of a party from significant expense resulting from the accessible because of undue burden or expense. If a showing of undue burden or production commanded. (3) On timely motion, the court from which the subpoena expense is made, the court may nonetheless order production of electronically stored was issued shall quash or modify the subpoena, or order appearance or production information if the requesting party shows good cause. The court shall consider the only under specified conditions, if the subpoena does any of the following: (a) Fails to factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise production of electronically stored information, the court may specify the format, protected matter and no exception or waiver applies; (c) Requires disclosure of a fact extent, timing, allocation of expenses and other conditions for the discovery of the known or opinion held by an expert not retained or specially employed by any party in electronically stored information. (4) When information subject to a subpoena is anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the withheld on a claim that it is privileged or subject to protection as trial preparation fact or opinion does not describe specific events or occurrences in dispute and results materials, the claim shall be made expressly and shall be supported by a description of from study by that expert that was not made at the request of any party; (d) Subjects the nature of the documents, communications, or things not produced that is a person to undue burden. sufficient to enable the demanding party to contest the claim. (5) If information is (4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting produced in response to a subpoena that is subject to a claim of privilege or of discovery under this rule shall attempt to resolve any claim of undue burden through protection as trial-preparation material, the person making the claim may notify any discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of party that received the information of the claim and the basis for it. After being this rule shall be supported by an affidavit of the subpoenaed person or a certificate of notified, a receiving party must promptly return, sequester, or destroy the specified that person's attorney of the efforts made to resolve any claim of undue burden. (5) If information and any copies within the party's possession, custody or control. A party a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash may not use or disclose the information until the claim is resolved. A receiving party or modify the subpoena unless the party in whose behalf the subpoena is issued may promptly present the information to the court under seal for a determination of shows the claim of privilege or of protection as trial-preparation material. If the receiving a substantial need for the testimony or material that cannot be otherwise met without party disclosed the information before being notified, it must take reasonable steps to undue hardship and assures that the person to whom the subpoena is addressed will retrieve it. The person who producedthe information must preserve the information be reasonably compensated. until the claim is resolved. Revised As Of 10/2018 EXHIBIT A Electronically Filed 11/06/2023 10:29 / MOTION / CV 21 955301 / Confirmation Nbr. 3009742 / CLDLJ