Preview
Motion No. 5122011
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
October 3,2023 16:14
By: BRIAN R. GUTKOSKI0076411
Confirmation Nbr. 2981051
GREATER CLEVELAND REGIONAL TRANSIT CV 22 962307
AUTHORITY
vs.
Judge: RICHARD A. BELL
CITY OF CLEVELAND, ET AL.
Pages Filed: 54
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
GREATER CLEVELAND REGIONAL ) CASE NO. CV 22-962307
TRANSIT AUTHORITY )
) JUDGE RICHARD A. BELL
)
Plaintiff, )
) plaintiff greater Cleveland
vs. ) REGIONAL TRANSIT AUTHORITY’S
) MOTION TO IMPOSE RULE 37(B)
CITY OF CLEVELAND, et al. ) discovery sanctions and for
) ATTORNEYS’ FEES
Defendants. )
Pursuant to Civ. R. 37(B), and this Court's order dated 4/18/2023, Plaintiff,
Greater Cleveland Regional Transit Authority ("GCRTA"), moves for discovery
sanctions. See Civ. R. 37(B)((1)(a)-(g). On 4/18/2023, the Court ordered “...Cleveland
shall provide complete responses to [GCRTA]'s Second Request for Production..”
Defendant, City of Cleveland, has failed to do so. No communication has been received
from Cleveland since June 15, 2023 relative to this ongoing discovery dispute/order. No
documents have been filed with this Court for in camera inspection to GCRTA's
knowledge. At this point, discovery sanctions should issue.
Respectfully submitted,
JANET E. BURNEY (Reg. No. 0031192)
General Counsel-Deputy General Manager for
Legal Affairs
BY: /s/ Brian R. Gutkoski
KEITH A. GANTHER (Reg. No. 0022413)
Senior Counsel - Litigation
BRIAN R. GUTKOSKI (Reg. No. 0076411)
Associate Counsel II
1240 West 6th Street
Cleveland, Ohio 44113
Telephone: (216) 356-3089
Facsimile: (216) 350-5296
E-Mail: kganther@gcrta.org
brian.gutkoski@gcrta.org
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GCRTA’s brief in support of motion for discovery sanctions
1. On 4/18/2023 this court ordered Cleveland to provide “complete responses to
Plaintiff’s Second Request for Production...” See Dkt.
This court recognizes a litigant's right to disagree with its ruling.
Nevertheless, the orderly administration of civil justice would be nearly
impossible if parties to lawsuits were free to decide, without consequence, which
orders of a court they would obey and which they would not. *** Where a party
fails to produce requested documents, Civil Rule 37 allows the court to ‘make
such orders in regard to the failure as are just.’ The rule also sets forth three
kinds of possible orders. The first is an order establishing designated facts in
favor of the moving party. Second is an order prohibiting the disobedient party
from introducing evidence. The third category is, essentially, an order entering
judgment against the disobedient party. Whatever sanction is ordered should be
the least severe sanction that is consistent with the purposes of the discovery
rules.
Sekerak v. GT Benefits, Inc., Cuyahoga No. CV 10 744047, 2013 Ohio Misc. LEXIS 4 at
*6 (O’Donnell, J.) citing Maddox v. City of East Cleveland, 8th Dist. No. 96390, 2012
Ohio 9, 7.
2. On 5/10/2023, the parties discussed Cleveland’s deficient responses at length with
the Court’s staff attorney. Cleveland was instructed to properly respond to these
requests.
3. For instance, GCRTA requested the personnel files of a number of water department
employees. Those personnel files (which are public records under R.C. 149.43) have
still not been provided to GCRTA’s counsel to date. It is now nearly six (6) months
later. “The personnel file of a police officer is a public record.” State ex rel.
Ideastream Public Media v. CMHA, 8th Dist. Cuyahoga No. 110346, 2021-Ohio-2843,
30 citing State ex rel. Natl. Broadcasting, 38 Ohio St.3d at 83, 526 N.E.2d 786
(1988). If John Q. Public can get a police officer’s personnel file on demand (in under
8 days per Ohio public records law), then certainly, a litigant should be able to get
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water department employees’ personnel files using a Civ. R. 34 request for
production in a timeframe under 180 days.
4. Also, GCRTA requested Ms. Futon’s claim file. Cleveland’s discovery response still
is attempting to claim privilege, but no log has been provided, nor any documents
provided for the court’s in camera review. GCRTA has asserted Cleveland has
waived any applicable privilege for these failures.
5. Undersigned counsel made numerous attempts to resolve these issues without court
intervention. See Ex. B.
6. It was undersigned counsel’s understanding that the Court would set a pretrial
hearing. See Ex. B.
7. Defendant, City of Cleveland has a pattern of appealing negligent repair cases
involving its water department.1 See Boucher v. City of Cleveland, CV 953310
(summary judgment denied by K. Callahan). On appeal, “[t]he city argues that the
evidence supporting its motion for summary judgment demonstrates that its agent,
Wilson, responded to the reported hazard in a timely fashion and ‘secured the area
for repair in a reasonable manner consistent with his training.’ The city contends that
in the absence of any evidence to suggest that ‘Wilson's methods and decisions fell
below an established standard of care, there is no evidence of negligent performance
1 Under Evid. R. 201(B), This Court is also permitted to take judicial notice of the historical practices of
Cleveland’s Water Department. https://www.news5cleveland.com/news/local-
news/investigations/cleveland-water. Last week, a federal judge denied summary judgment in a class
action finding, “Between 2014 and 2018, Cleveland Water placed more than 11,000 water liens on
properties in Cuyahoga County, and nearly 6,000 residents were subject to property tax foreclosures as a
result. Plaintiffs provided statistical evidence demonstrating that a majority of these water liens were
placed in majority-Black Census blocks as compared to majority-White Census blocks, despite the fact
that the majority of Cuyahoga County’s population is White.” Pickett, et al. v. City of Cleveland, et al.
No. 1:19 CV 2911, 2023 WL 6383757, at *2 (N.D. Ohio Sept. 30, 2023). The City’s history, and the
water department’s actions in this case support the conclusion that the water department has a practice of
not following the rules.
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by a city employee with respect to a proprietary function.' Boucher v. Cleveland,
2023-Ohio-1818, 39, appeal not allowed, 171 Ohio St. 3d 1438, 2023-Ohio-3328.
The Eighth District affirmed denial of immunity under Chapter 2744.
8. Until GCRTA is afforded the opportunity to inspect the relevant water department
employees' files, it is unable to discover if the employees involved in this case
followed their training, or were in fact negligent in destroying GCRTA's bus shelter.
See also, DeBarr v. Cleveland, Cuyahoga Cty. C.P. CV 21-951047 (Gallagher,
H.)(summary judgment denied, and Cleveland appealed CA 23-112305). There is
simply no reason why these employees' files and the law department's claim file were
not yet produced in discovery, almost 18 months after GCRTA started this litigation.
9. In Abdelshahid v. Cleveland Clinic Found., 2015-Ohio-2274, the Eighth District
rejected the City's attempts to thwart GCRTA's discovery efforts. “CCF moved for
summary judgment, arguing that Abdelshahid failed to establish that the nurse call
cord was a hazardous condition and it did not owe her a duty to warn of an open and
obvious hazard.” Id. at 5. The Eighth District reversed summary judgment because
“CCF cannot fail to comply with Abdelshahid's discovery requests and then prevail on
its motion for summary judgment on the basis of the open and obvious doctrine, when
[CCF] submitted no specific discovery pertaining to the incident.’’ Abdelshahid
v. Cleveland Clinic Found., 2015-Ohio-2274, 23. (Emphasis added). In a similar
manner, when GCRTA sought a Civ. R. 30(B)(5) deponent, the one offered up simply
played the “I have no personal knowledge” game.
10. For the above reasons, Cleveland should be forced to pay GCRTA's attorneys fees
for redeposing a properly prepared Civ. R. 30(B)(5) deponent.
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WHEREFORE, Plaintiff, GCRTA requests that the Court impose Civ. R. 37(B)
sanctions and allow GCRTA to recover its attorneys’ fees for these discovery disputes.
Respectfully submitted,
JANET E. BURNEY (Reg. No. 0031192)
General Counsel-Deputy General Manager for
Legal Affairs
BY: /s/ Brian R. Gutkoski
KEITH A. GANTHER (Reg. No. 0022413)
Senior Counsel - Litigation
BRIAN R. GUTKOSKI (Reg. No. 0076411)
Associate Counsel II
1240 West 6th Street
Cleveland, Ohio 44113
Telephone: (216) 356-3089
Facsimile: (216) 350-5296
E-Mail: kganther@gcrta.org
brian.gutkoski@gcrta.org
litigation@gcrta.org
Attorneys for Plaintiff Greater Cleveland
Regional Transit Authority
certificate of service
The foregoing Greater Cleveland Regional Transit Motion for Sanctions was
forwarded electronically by the court’s filing system on this 3rd day of October, 2023 to
all parties/counsel of record.
/s/ Brian R. Gutkoski
BRIAN R. GUTKOSKI
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EXHIBIT A
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in the court of common pleas
cuyahoga county, ohio
greater Cleveland regional ) CASE NO.: CV 22 962307
transit authority, )
) JUDGE RICHARD A. BELL
Plaintiff, )
)
v. ) DEFENDANT CITY OF CLEVELAND'S
) AMENDED SUPPLEMENTAL
CITY OF CLEVELAND, ) RESPONSE TO PLAINTIFF'S SECOND
) REQUEST FOR PRODUCTION
Defendant.
Pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Defendants, the City of
Cleveland, non suijuris City of Cleveland Division of Water, Juan Elliott, Henry Hughes, Michael
Doyle, Renaldo Stallworth, Nathan Smith, and Kenneth Fedrick (“Defendants”) submit the
following Supplemental Responses to Plaintiff’s Request for Production of documents (“RFP”).
Defendants reserve the right to revise, delete, amend, correct, or otherwise supplement these
supplemental responses throughout the discovery process.
GENERAL OBJECTIONS
A. Defendant objects to Plaintiff’s definitions and instructions to the extent they are in any
way intended to specify, limit, condition, or expand the scope of this action. Defendant
objects to all definitions that exceed the scope of the Ohio Rules of Civil Procedure and/or
attempt to compel Defendant to respond in a particular manner.
B. Defendant objects to each RFP to the extent that it seeks information protected by the
attorney-client and/or work product privileges to which Defendant might be entitled as a
matter of law.
C. Defendant generally objects to these RFPs to the extent they seek information either not
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related to the subject matter of the above-entitled litigation or not reasonably calculated to
lead to the discovery of evidence relevant to a claim or defense or a party in this case.
D. Defendant objects to any RFP that seeks information that is equally available to Plaintiff
from public or other sources and interrogatories that seek information which can only be
obtained from individuals not currently employed by Defendant, or which purports to be
applicable to persons or entities other than Defendant as such interrogatories are beyond
the scope of the Ohio Rules of Civil Procedure.
E. The following objections and answers are based on information presently known after good
faith investigation and in light of the present state of discovery. Defendant’s objections
and answers are made without prejudice to its right to rely upon subsequently discovered
facts, and therefore Defendant reserves the right to supplement its objections and answers
upon the discovery of such information.
F. The following responses are supplemental to the initial responses, in that they merely
supplement prior responses for the purpose of providing continuing information throughout
litigation in good-faith. They do not necessarily, or simply by virtue of the substance
contained within such response, contradict, alter, or negate previously filed responses.
responses
1. Any and all documents that substantiate the denials set forth in Paragraphs 3, 5, 7, 8 and
9 of the Answer of Defendant City of Cleveland to the Plaintiff’s Complaint.
RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited
in scope and/or specified parameters, overly broad, and unduly burdensome. Objection
notwithstanding, and without waiving, all documents that were used to substantiate the denials
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have been provided as Bates Stamped: CLE000001-CLE000040 on July 15, 2022 and as
CLE000041- CLE000043 on May 9, 2023.
2. Any and all documents that support the defenses affirmatively asserted in Paragraphs 15,
16, 17, 18, 19, 20, 21 and 24 of the Answer of Defendant City of Cleveland to the
Plaintiffs Complaint.
RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited
in scope and/or specified parameters, overly broad, and unduly burdensome. Objection
notwithstanding, and without waiving, all documents that were used to support the defenses have
been provided as Bates Stamped: CLE000001-CLE000040 on July 15, 2022 and as CLE000041-
CLE000043 on May 9, 2023.
3. Legible copies of any and all documents, emails, meeting notes regarding the City’s denial
of Plaintiff GCRTA’s damages in Claim No. 7758.
RESPONSE: Objection. The request is vague, ambiguous, overly broad, and not
reasonably calculated to lead to admissible evidence. In addition, said request calls for
information protected by the attorney-client and/or work-product privileges. Objection
notwithstanding, and without waiving, the requested documents were previously provided to
Plaintiff’s counsel via e-mail on July 15, 2022 with Defendants’ Initial Disclosures (see Initial
Disclosures Bates Stamped CLE000001-CLE000040).
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4. Any and all maintenance records for the water main/pipe segment that broke/failed and is
at issue in this case.
RESPONSE: Objection. The request is overly broad, not limited in time or scope, and
unduly burdensome. Objection notwithstanding, and without waiving, there are no maintenance
records in Defendants’ possession for the two years preceding the subject incident (April 2018 to
April 2020).
5. Any and all Field Investigation Report documents of the area/vicinity where the water
main break occurred.
RESPONSE: See attached documents, Bates Stamped: CLE000041- CLE000043.
6. Any and all work orders for the water man repair at issue in this case.
RESPONSE: See attached documents, Bates Stamped: CLE000044- CLE000064 for work
orders associated with the repair and restoration of the vicinity.
7. The GIS map of the subject water main.
RESPONSE: See attached documents, Bates Stamped: CLE000065.
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8. Any and all procedures including written, oral, videotape, interoffice communications,
bulletins, memos, training materials/manuals for repairing a broken water main.
RESPONSE: Objection. The request is overly broad, not limited in scope and/or specified
parameters, unduly burdensome, vague, ambiguous, and/or trade secrets. Objection
notwithstanding, and without waiving, none in Defendants’ possession.
9. All press releases, public announcements, notifications, text messages, broadcasts,
communications, sent/received to anyone regarding the water main break that is the
subject of this litigation.
RESPONSE: Objection. The request is overly broad, vague, ambiguous, unduly
burdensome, calls for information that is equally accessible, calls for information not in our
possession, and is not reasonably calculated to lead to admissible evidence.
10. Legible copies of any expense reports, receipts, checks, payments for tools, equipment
and materials used to repair the broken water main.
RESPONSE: Objection. The request is overly broad, unduly burdensome, ambiguous,
calls for information not in our possession or does not exist, and is not reasonably calculated to
lead to admissible evidence.
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11. Legible copies of all persons who repaired the broken water main, timesheets, work
records, attendance reports, pay records for the time period the pipe was repaired.
RESPONSE: Objection. This request is overly broad, vague, ambiguous, unduly
burdensome, calls for certain information that is equally available to Plaintiff, and is not
reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without
waiving, defense counsel has commenced the request-process for personnel files, and, upon
receipt, will review the documents to assess the appropriateness of disclosure to plaintiff's
counsel, redactions, and confidential information.
12. Legible copies of the reports of all experts that will testify at the trial of this case for
Defendant.
RESPONSE: None at this time. Defendants reserve the right to call an expert and will
comply with the Court’s next Case Management Order
13. Legible copies of all employees’ personnel files that were involved with the repair of the
water main that is the subject of this litigation.
RESPONSE: Objection. This request is overly broad, unduly burdensome, calls for
information that is equally available to Plaintiff, and is not reasonably calculated to lead to
admissible evidence. Objection notwithstanding, and without waiving, defense counsel has
commenced the request-process for personnel files, and, upon receipt, will review the documents
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to assess the appropriateness of disclosure to plaintiffs counsel, redactions, and confidential
information.
14. The unabridged examination file of “Heather Fulton” regarding Claim No. 7758.
RESPONSE: In addition, said request calls for information protected by the attorney
client and/or work-product privileges. Objection notwithstanding, and without waiving, the
requested documents were previously provided to Plaintiffs counsel via e-mail on July 15, 2022
with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001-
CLE000040).
15. Any and all repair estimates to repair the damage to Plaintiff’s bus shelter including its
foundation, communication and power cabinets.
RESPONSE: Objection. Calls for information protected by attorney-client and/or work
product privileges. Objection notwithstanding, and without waiving, a repair estimate was
prepared by, and in the possession of, Plaintiff.
Respectfully submitted,
MARK D. GRIFFIN
DIRECTOR OF LAW
By: /s/Affan Ali
Affan Ali (101909)
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
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Tel: (216) 664-2852
E-mail: aali2@clevelandohio.gov
Attorneys for Defendant City of Cleveland
certificate of service
I certify that on May 10th, 2023, I served a true and accurate copy of the foregoing via
email to Plaintiff’s counsel and any other counsel registered or appearing in this matter.
/s/ Affan Ali______
One of the Attorneys for Defendant City of
Cleveland
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
GREATER CLEVELAND REGIONAL ) CASE NO.: CV 22 962307
TRANSIT AUTHORITY, )
) JUDGE RICHARD A. BELL
Plaintiff, )
)
v. ) DEFENDANT CITY OF CLEVELAND’S
) SUPPLEMENTAL RESPONSE TO
CITY OF CLEVELAND. ) PLAINTIFF’S SECOND REQUEST FOR
) PRODUCTION
Defendant.
Pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Defendants, the City of
Cleveland, non suijuris City of Cleveland Division of Water, Juan Elliott, Henry Hughes, Michael
Doyle, Renaldo Stallworth, Nathan Smith, and Kenneth Fedrick (“Defendants”) submit the
following Supplemental Responses to Plaintiffs Request for Production of documents (“RFP”).
Defendants reserve the right to revise, delete, amend, correct, or otherwise supplement these
supplemental responses throughout the discovery process.
GENERAL OBJECTIONS
A. Defendant objects to Plaintiffs definitions and instructions to the extent they are in any
way intended to specify, limit, condition, or expand the scope of this action. Defendant
objects to all definitions that exceed the scope of the Ohio Rules of Civil Procedure and/or
attempt to compel Defendant to respond in a particular manner.
B. Defendant objects to each RFP to the extent that it seeks information protected by the
attorney-client and/or work product privileges to which Defendant might be entitled as a
matter of law.
C. Defendant generally objects to these RFPs to the extent they seek information either not
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related to the subject matter of the above-entitled litigation or not reasonably calculated to
lead to the discovery of evidence relevant to a claim or defense or a party in this case.
D. Defendant objects to any RFP that seeks information that is equally available to Plaintiff
from public or other sources and interrogatories that seek information which can only be
obtained from individuals not currently employed by Defendant, or which purports to be
applicable to persons or entities other than Defendant as such interrogatories are beyond
the scope of the Ohio Rules of Civil Procedure.
E. The following objections and answers are based on information presently known after good
faith investigation and in light of the present state of discovery. Defendant’s objections
and answers are made without prejudice to its right to rely upon subsequently discovered
facts, and therefore Defendant reserves the right to supplement its objections and answers
upon the discovery of such information.
F. The following responses are supplemental to the initial responses, in that they merely
supplement prior responses for the purpose of providing continuing information throughout
litigation in good-faith. They do not necessarily, or simply by virtue of the substance
contained within such response, contradict, alter, or negate previously filed responses.
RESPONSES
1. Any and all documents that substantiate the denials set forth in Paragraphs 3, 5, 7, 8 and
9 of the Answer of Defendant City of Cleveland to the Plaintiffs Complaint.
RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited
in scope and/or specified parameters, overly broad, and unduly burdensome. In addition, said
request calls for information protected by the attorney-client and/or work-product privileges.
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2. Any and all documents that support the defenses affirmatively asserted in Paragraphs 15,
16, 17, 18, 19, 20, 21 and 24 of the Answer of Defendant City of Cleveland to the
Plaintiffs Complaint.
RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited
in scope and/or specified parameters, overly broad, and unduly burdensome. In addition, said
request calls for information protected by the attorney-client and/or work-product privileges.
3. Legible copies of any and all documents, emails, meeting notes regarding the City’s denial
of Plaintiff GCRTA’s damages in Claim No. 7758.
RESPONSE: Objection. The request is vague, ambiguous, overly broad, and not
reasonably calculated to lead to admissible evidence. In addition, said request calls for
information protected by the attorney-client and/or work-product privileges. Objection
notwithstanding, and without waiving, the requested documents were previously provided to
Plaintiffs counsel via e-mail on July 15, 2022 with Defendants’ Initial Disclosures (see Initial
Disclosures Bates Stamped CLE000001-CLE000040}.
4. Any and all maintenance records for the water main/pipe segment that broke/failed and is
at issue in this case.
RESPONSE: Objection. The request is overly broad, not limited in time or scope, and
unduly burdensome. Objection notwithstanding, and without waiving, there are no maintenance
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records in Defendants’ possession for the two years preceding the subject incident (April 2018 to
April 2020).
5. Any and all Field Investigation Report documents of the area/vicinity where the water
main break occurred.
RESPONSE: See attached documents, Bates Stamped: CLE000041- CLE000043.
6. Any and all work orders for the water man repair at issue in this case.
RESPONSE: See attached documents, Bates Stamped: CLE000044- CLE000064 for work
orders associated with the repair and restoration of the vicinity.
7. The GIS map of the subject water main.
RESPONSE: See attached documents, Bates Stamped: CLE000065.
8. Any and all procedures including written, oral, videotape, interoffice communications,
bulletins, memos, training materials/manuals for repairing a broken water main.
RESPONSE: Objection. The request is overly broad, not limited in scope and/or specified
parameters, unduly burdensome, vague, ambiguous, and/or trade secrets. Objection
notwithstanding, and without waiving, none in Defendants’ possession.
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9. All press releases, public announcements, notifications, text messages, broadcasts,
communications, sent/received to anyone regarding the water main break that is the
subject of this litigation.
RESPONSE: Objection. The request is overly broad, vague, ambiguous, unduly
burdensome, calls for information that is equally accessible, calls for information not in our
possession, calls for information protected by attorney-client and work-product privilege, and is
not reasonably calculated to lead to admissible evidence.
10. Legible copies of any expense reports, receipts, checks, payments for tools, equipment
and materials used to repair the broken water main.
RESPONSE: Objection. The request is overly broad, unduly burdensome, ambiguous,
calls for information not in our possession or does not exist, and is not reasonably calculated to
lead to admissible evidence.
11. Legible copies of all persons who repaired the broken water main, timesheets, work
records, attendance reports, pay records for the time period the pipe was repaired.
RESPONSE: Objection. This request is overly broad, vague, ambiguous, unduly
burdensome, calls for certain information that is equally available to Plaintiff, and is not
reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without
waiving, defense counsel has commenced the request-process for personnel files, and, upon
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receipt, will review the documents to assess the appropriateness of disclosure to plaintiffs
counsel, redactions, and confidential information.
12. Legible copies of the reports of all experts that will testify at the trial of this case for
Defendant.
RESPONSE: None at this time. Defendants reserve the right to call an expert and will
comply with the Court’s next Case Management Order
13. Legible copies of all employees’ personnel files that were involved with the repair of the
water main that is the subject of this litigation.
RESPONSE: Objection. This request is overly broad, unduly burdensome, calls for
information that is equally available to Plaintiff, and is not reasonably calculated to lead to
admissible evidence. Objection notwithstanding, and without waiving, defense counsel has
commenced the request-process for personnel files, and, upon receipt, will review the documents
to assess the appropriateness of disclosure to plaintiffs counsel, redactions, and confidential
information.
14. The unabridged examination file of “Heather Fulton” regarding Claim No. 7758.
RESPONSE: In addition, said request calls for information protected by the attorney
client and/or work-product privileges. Objection notwithstanding, and without waiving, the
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requested documents were previously provided to Plaintiffs counsel via e-mail on July 15,2022
with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001-
CLE000040).
15. Any and all repair estimates to repair the damage to Plaintiffs bus shelter including its
foundation, communication and power cabinets.
RESPONSE: Objection. Calls for information protected by attorney-client and/or work
product privileges. Objection notwithstanding, and without waiving, a repair estimate was
prepared by, and in the possession of, Plaintiff.
Respectfully submitted,
MARK D. GRIFFIN
DIRECTOR OF LAW
By: Zs/Affan All
AffanAli (101909)
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
Tel: (216)664-2852
E-mail: aali2@clevelandohio.gov
Attorneys for Defendant City of Cleveland
CERTIFICATE OF SERVICE
I certify that on May 9th, 2023,1 served a true and accurate copy of the foregoing via email
to Plaintiffs counsel and any other counsel registered or appearing in this matter.
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/s/ Affan Ali
One of the Attorneys for Defendant City of
Cleveland
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c.itvwo) k-i
i
Priority: 1 Category: CWDCC Submit To: Hughes, Henry
Initiated By: Pickens, Christina Date: 4/14/2020 2:16:12PM
Supervisor: CWD Comm, Dispatch
Requested By: CWD Comm, Dispatch
Submit to Date: 4/14/2020 2:16:12PM
Projected Start: 4/14/2020 2:16:12PM Projected Finish: 4/14/2020 2:16:12PM
Opened By: Hughes, Henry Date: 4/14/2020 2:48:19PM
Closed By: Pickens, Christina Date: 4/14/2020 3:55:23PM
Completed By: Hughes, Henry
Actual Start: 4/14/2020 2:40:22PM Actual Finish: 4/14/2020 3:45:00PM
Stage: ACTUAL Expense Type: MAINT
Tasks:
Name Description Status Proceed?
Assets:
Type Did Location
CWDWOTHER-CC 0
Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW C[_E000041
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Priority: 1 Category: CWDCC Submit To: CWD Comm, Dispatch
Initiated By: Anderson, Carmen Date: 4/14/2020 12:47:39PM
WO Needed: N
Investigation Date: 4/14/2020 3:55:24PM Submit To Date: 4/14/2020 12:47:39PM
Dispatch To: Date:
Project Name Prj. Comp. Date:
Incident Information:
Address: Euclid Ave & Superior Ave, East Cleveland, 44112
East Cleveland,
Apt#:
Landmark:
Shop Tile No: 990 Non-Campus Location
Map Page: District: CWD02
Location
X: 2217804 Y: 677647
Details: PER Police Dept.
Callers:
Last Name First Name Call Time
UNKNOWN SHAWN 4/14/2020 12:46:41PM
Work Orders:
Id: Description Priority: Status: Submit To:
Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW
Page 1 of 1
CLE000044 5/8/2023
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Motion No. 5122011 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... October 3,2023 16:14 By: BRIAN R. GUTKOSKI0076411 Confirmation Nbr. 2981051 GREATER CLEVELAND REGIONAL TRANSIT CV 22 962307 AUTHORITY vs. Judge: RICHARD A. BELL CITY OF CLEVELAND, ET AL. Pages Filed: 54 Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO GREATER CLEVELAND REGIONAL ) CASE NO. CV 22-962307 TRANSIT AUTHORITY ) ) JUDGE RICHARD A. BELL ) Plaintiff, ) ) plaintiff greater Cleveland vs. ) REGIONAL TRANSIT AUTHORITY’S ) MOTION TO IMPOSE RULE 37(B) CITY OF CLEVELAND, et al. ) discovery sanctions and for ) ATTORNEYS’ FEES Defendants. ) Pursuant to Civ. R. 37(B), and this Court's order dated 4/18/2023, Plaintiff, Greater Cleveland Regional Transit Authority ("GCRTA"), moves for discovery sanctions. See Civ. R. 37(B)((1)(a)-(g). On 4/18/2023, the Court ordered “...Cleveland shall provide complete responses to [GCRTA]'s Second Request for Production..” Defendant, City of Cleveland, has failed to do so. No communication has been received from Cleveland since June 15, 2023 relative to this ongoing discovery dispute/order. No documents have been filed with this Court for in camera inspection to GCRTA's knowledge. At this point, discovery sanctions should issue. Respectfully submitted, JANET E. BURNEY (Reg. No. 0031192) General Counsel-Deputy General Manager for Legal Affairs BY: /s/ Brian R. Gutkoski KEITH A. GANTHER (Reg. No. 0022413) Senior Counsel - Litigation BRIAN R. GUTKOSKI (Reg. No. 0076411) Associate Counsel II 1240 West 6th Street Cleveland, Ohio 44113 Telephone: (216) 356-3089 Facsimile: (216) 350-5296 E-Mail: kganther@gcrta.org brian.gutkoski@gcrta.org Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / ConfMat&^fb£^§1fc51¥ClLAMW GCRTA’s brief in support of motion for discovery sanctions 1. On 4/18/2023 this court ordered Cleveland to provide “complete responses to Plaintiff’s Second Request for Production...” See Dkt. This court recognizes a litigant's right to disagree with its ruling. Nevertheless, the orderly administration of civil justice would be nearly impossible if parties to lawsuits were free to decide, without consequence, which orders of a court they would obey and which they would not. *** Where a party fails to produce requested documents, Civil Rule 37 allows the court to ‘make such orders in regard to the failure as are just.’ The rule also sets forth three kinds of possible orders. The first is an order establishing designated facts in favor of the moving party. Second is an order prohibiting the disobedient party from introducing evidence. The third category is, essentially, an order entering judgment against the disobedient party. Whatever sanction is ordered should be the least severe sanction that is consistent with the purposes of the discovery rules. Sekerak v. GT Benefits, Inc., Cuyahoga No. CV 10 744047, 2013 Ohio Misc. LEXIS 4 at *6 (O’Donnell, J.) citing Maddox v. City of East Cleveland, 8th Dist. No. 96390, 2012 Ohio 9, 7. 2. On 5/10/2023, the parties discussed Cleveland’s deficient responses at length with the Court’s staff attorney. Cleveland was instructed to properly respond to these requests. 3. For instance, GCRTA requested the personnel files of a number of water department employees. Those personnel files (which are public records under R.C. 149.43) have still not been provided to GCRTA’s counsel to date. It is now nearly six (6) months later. “The personnel file of a police officer is a public record.” State ex rel. Ideastream Public Media v. CMHA, 8th Dist. Cuyahoga No. 110346, 2021-Ohio-2843, 30 citing State ex rel. Natl. Broadcasting, 38 Ohio St.3d at 83, 526 N.E.2d 786 (1988). If John Q. Public can get a police officer’s personnel file on demand (in under 8 days per Ohio public records law), then certainly, a litigant should be able to get Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307/ Confirmation Nbr. 2981051 / CLAMW water department employees’ personnel files using a Civ. R. 34 request for production in a timeframe under 180 days. 4. Also, GCRTA requested Ms. Futon’s claim file. Cleveland’s discovery response still is attempting to claim privilege, but no log has been provided, nor any documents provided for the court’s in camera review. GCRTA has asserted Cleveland has waived any applicable privilege for these failures. 5. Undersigned counsel made numerous attempts to resolve these issues without court intervention. See Ex. B. 6. It was undersigned counsel’s understanding that the Court would set a pretrial hearing. See Ex. B. 7. Defendant, City of Cleveland has a pattern of appealing negligent repair cases involving its water department.1 See Boucher v. City of Cleveland, CV 953310 (summary judgment denied by K. Callahan). On appeal, “[t]he city argues that the evidence supporting its motion for summary judgment demonstrates that its agent, Wilson, responded to the reported hazard in a timely fashion and ‘secured the area for repair in a reasonable manner consistent with his training.’ The city contends that in the absence of any evidence to suggest that ‘Wilson's methods and decisions fell below an established standard of care, there is no evidence of negligent performance 1 Under Evid. R. 201(B), This Court is also permitted to take judicial notice of the historical practices of Cleveland’s Water Department. https://www.news5cleveland.com/news/local- news/investigations/cleveland-water. Last week, a federal judge denied summary judgment in a class action finding, “Between 2014 and 2018, Cleveland Water placed more than 11,000 water liens on properties in Cuyahoga County, and nearly 6,000 residents were subject to property tax foreclosures as a result. Plaintiffs provided statistical evidence demonstrating that a majority of these water liens were placed in majority-Black Census blocks as compared to majority-White Census blocks, despite the fact that the majority of Cuyahoga County’s population is White.” Pickett, et al. v. City of Cleveland, et al. No. 1:19 CV 2911, 2023 WL 6383757, at *2 (N.D. Ohio Sept. 30, 2023). The City’s history, and the water department’s actions in this case support the conclusion that the water department has a practice of not following the rules. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307/ Confirmation Nbr. 2981051 / CLAMW by a city employee with respect to a proprietary function.' Boucher v. Cleveland, 2023-Ohio-1818, 39, appeal not allowed, 171 Ohio St. 3d 1438, 2023-Ohio-3328. The Eighth District affirmed denial of immunity under Chapter 2744. 8. Until GCRTA is afforded the opportunity to inspect the relevant water department employees' files, it is unable to discover if the employees involved in this case followed their training, or were in fact negligent in destroying GCRTA's bus shelter. See also, DeBarr v. Cleveland, Cuyahoga Cty. C.P. CV 21-951047 (Gallagher, H.)(summary judgment denied, and Cleveland appealed CA 23-112305). There is simply no reason why these employees' files and the law department's claim file were not yet produced in discovery, almost 18 months after GCRTA started this litigation. 9. In Abdelshahid v. Cleveland Clinic Found., 2015-Ohio-2274, the Eighth District rejected the City's attempts to thwart GCRTA's discovery efforts. “CCF moved for summary judgment, arguing that Abdelshahid failed to establish that the nurse call cord was a hazardous condition and it did not owe her a duty to warn of an open and obvious hazard.” Id. at 5. The Eighth District reversed summary judgment because “CCF cannot fail to comply with Abdelshahid's discovery requests and then prevail on its motion for summary judgment on the basis of the open and obvious doctrine, when [CCF] submitted no specific discovery pertaining to the incident.’’ Abdelshahid v. Cleveland Clinic Found., 2015-Ohio-2274, 23. (Emphasis added). In a similar manner, when GCRTA sought a Civ. R. 30(B)(5) deponent, the one offered up simply played the “I have no personal knowledge” game. 10. For the above reasons, Cleveland should be forced to pay GCRTA's attorneys fees for redeposing a properly prepared Civ. R. 30(B)(5) deponent. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307/ Confirmation Nbr. 2981051 / CLAMW WHEREFORE, Plaintiff, GCRTA requests that the Court impose Civ. R. 37(B) sanctions and allow GCRTA to recover its attorneys’ fees for these discovery disputes. Respectfully submitted, JANET E. BURNEY (Reg. No. 0031192) General Counsel-Deputy General Manager for Legal Affairs BY: /s/ Brian R. Gutkoski KEITH A. GANTHER (Reg. No. 0022413) Senior Counsel - Litigation BRIAN R. GUTKOSKI (Reg. No. 0076411) Associate Counsel II 1240 West 6th Street Cleveland, Ohio 44113 Telephone: (216) 356-3089 Facsimile: (216) 350-5296 E-Mail: kganther@gcrta.org brian.gutkoski@gcrta.org litigation@gcrta.org Attorneys for Plaintiff Greater Cleveland Regional Transit Authority certificate of service The foregoing Greater Cleveland Regional Transit Motion for Sanctions was forwarded electronically by the court’s filing system on this 3rd day of October, 2023 to all parties/counsel of record. /s/ Brian R. Gutkoski BRIAN R. GUTKOSKI Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307/ Confirmation Nbr. 2981051 / CLAMW EXHIBIT A Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307/ Confirmation Nbr. 2981051 / CLAMW in the court of common pleas cuyahoga county, ohio greater Cleveland regional ) CASE NO.: CV 22 962307 transit authority, ) ) JUDGE RICHARD A. BELL Plaintiff, ) ) v. ) DEFENDANT CITY OF CLEVELAND'S ) AMENDED SUPPLEMENTAL CITY OF CLEVELAND, ) RESPONSE TO PLAINTIFF'S SECOND ) REQUEST FOR PRODUCTION Defendant. Pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Defendants, the City of Cleveland, non suijuris City of Cleveland Division of Water, Juan Elliott, Henry Hughes, Michael Doyle, Renaldo Stallworth, Nathan Smith, and Kenneth Fedrick (“Defendants”) submit the following Supplemental Responses to Plaintiff’s Request for Production of documents (“RFP”). Defendants reserve the right to revise, delete, amend, correct, or otherwise supplement these supplemental responses throughout the discovery process. GENERAL OBJECTIONS A. Defendant objects to Plaintiff’s definitions and instructions to the extent they are in any way intended to specify, limit, condition, or expand the scope of this action. Defendant objects to all definitions that exceed the scope of the Ohio Rules of Civil Procedure and/or attempt to compel Defendant to respond in a particular manner. B. Defendant objects to each RFP to the extent that it seeks information protected by the attorney-client and/or work product privileges to which Defendant might be entitled as a matter of law. C. Defendant generally objects to these RFPs to the extent they seek information either not Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW related to the subject matter of the above-entitled litigation or not reasonably calculated to lead to the discovery of evidence relevant to a claim or defense or a party in this case. D. Defendant objects to any RFP that seeks information that is equally available to Plaintiff from public or other sources and interrogatories that seek information which can only be obtained from individuals not currently employed by Defendant, or which purports to be applicable to persons or entities other than Defendant as such interrogatories are beyond the scope of the Ohio Rules of Civil Procedure. E. The following objections and answers are based on information presently known after good faith investigation and in light of the present state of discovery. Defendant’s objections and answers are made without prejudice to its right to rely upon subsequently discovered facts, and therefore Defendant reserves the right to supplement its objections and answers upon the discovery of such information. F. The following responses are supplemental to the initial responses, in that they merely supplement prior responses for the purpose of providing continuing information throughout litigation in good-faith. They do not necessarily, or simply by virtue of the substance contained within such response, contradict, alter, or negate previously filed responses. responses 1. Any and all documents that substantiate the denials set forth in Paragraphs 3, 5, 7, 8 and 9 of the Answer of Defendant City of Cleveland to the Plaintiff’s Complaint. RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited in scope and/or specified parameters, overly broad, and unduly burdensome. Objection notwithstanding, and without waiving, all documents that were used to substantiate the denials Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW have been provided as Bates Stamped: CLE000001-CLE000040 on July 15, 2022 and as CLE000041- CLE000043 on May 9, 2023. 2. Any and all documents that support the defenses affirmatively asserted in Paragraphs 15, 16, 17, 18, 19, 20, 21 and 24 of the Answer of Defendant City of Cleveland to the Plaintiffs Complaint. RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited in scope and/or specified parameters, overly broad, and unduly burdensome. Objection notwithstanding, and without waiving, all documents that were used to support the defenses have been provided as Bates Stamped: CLE000001-CLE000040 on July 15, 2022 and as CLE000041- CLE000043 on May 9, 2023. 3. Legible copies of any and all documents, emails, meeting notes regarding the City’s denial of Plaintiff GCRTA’s damages in Claim No. 7758. RESPONSE: Objection. The request is vague, ambiguous, overly broad, and not reasonably calculated to lead to admissible evidence. In addition, said request calls for information protected by the attorney-client and/or work-product privileges. Objection notwithstanding, and without waiving, the requested documents were previously provided to Plaintiff’s counsel via e-mail on July 15, 2022 with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001-CLE000040). Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW 4. Any and all maintenance records for the water main/pipe segment that broke/failed and is at issue in this case. RESPONSE: Objection. The request is overly broad, not limited in time or scope, and unduly burdensome. Objection notwithstanding, and without waiving, there are no maintenance records in Defendants’ possession for the two years preceding the subject incident (April 2018 to April 2020). 5. Any and all Field Investigation Report documents of the area/vicinity where the water main break occurred. RESPONSE: See attached documents, Bates Stamped: CLE000041- CLE000043. 6. Any and all work orders for the water man repair at issue in this case. RESPONSE: See attached documents, Bates Stamped: CLE000044- CLE000064 for work orders associated with the repair and restoration of the vicinity. 7. The GIS map of the subject water main. RESPONSE: See attached documents, Bates Stamped: CLE000065. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW 8. Any and all procedures including written, oral, videotape, interoffice communications, bulletins, memos, training materials/manuals for repairing a broken water main. RESPONSE: Objection. The request is overly broad, not limited in scope and/or specified parameters, unduly burdensome, vague, ambiguous, and/or trade secrets. Objection notwithstanding, and without waiving, none in Defendants’ possession. 9. All press releases, public announcements, notifications, text messages, broadcasts, communications, sent/received to anyone regarding the water main break that is the subject of this litigation. RESPONSE: Objection. The request is overly broad, vague, ambiguous, unduly burdensome, calls for information that is equally accessible, calls for information not in our possession, and is not reasonably calculated to lead to admissible evidence. 10. Legible copies of any expense reports, receipts, checks, payments for tools, equipment and materials used to repair the broken water main. RESPONSE: Objection. The request is overly broad, unduly burdensome, ambiguous, calls for information not in our possession or does not exist, and is not reasonably calculated to lead to admissible evidence. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW 11. Legible copies of all persons who repaired the broken water main, timesheets, work records, attendance reports, pay records for the time period the pipe was repaired. RESPONSE: Objection. This request is overly broad, vague, ambiguous, unduly burdensome, calls for certain information that is equally available to Plaintiff, and is not reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without waiving, defense counsel has commenced the request-process for personnel files, and, upon receipt, will review the documents to assess the appropriateness of disclosure to plaintiff's counsel, redactions, and confidential information. 12. Legible copies of the reports of all experts that will testify at the trial of this case for Defendant. RESPONSE: None at this time. Defendants reserve the right to call an expert and will comply with the Court’s next Case Management Order 13. Legible copies of all employees’ personnel files that were involved with the repair of the water main that is the subject of this litigation. RESPONSE: Objection. This request is overly broad, unduly burdensome, calls for information that is equally available to Plaintiff, and is not reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without waiving, defense counsel has commenced the request-process for personnel files, and, upon receipt, will review the documents Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW to assess the appropriateness of disclosure to plaintiffs counsel, redactions, and confidential information. 14. The unabridged examination file of “Heather Fulton” regarding Claim No. 7758. RESPONSE: In addition, said request calls for information protected by the attorney client and/or work-product privileges. Objection notwithstanding, and without waiving, the requested documents were previously provided to Plaintiffs counsel via e-mail on July 15, 2022 with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001- CLE000040). 15. Any and all repair estimates to repair the damage to Plaintiff’s bus shelter including its foundation, communication and power cabinets. RESPONSE: Objection. Calls for information protected by attorney-client and/or work product privileges. Objection notwithstanding, and without waiving, a repair estimate was prepared by, and in the possession of, Plaintiff. Respectfully submitted, MARK D. GRIFFIN DIRECTOR OF LAW By: /s/Affan Ali Affan Ali (101909) Assistant Director of Law City of Cleveland Department of Law 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW Tel: (216) 664-2852 E-mail: aali2@clevelandohio.gov Attorneys for Defendant City of Cleveland certificate of service I certify that on May 10th, 2023, I served a true and accurate copy of the foregoing via email to Plaintiff’s counsel and any other counsel registered or appearing in this matter. /s/ Affan Ali______ One of the Attorneys for Defendant City of Cleveland Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO GREATER CLEVELAND REGIONAL ) CASE NO.: CV 22 962307 TRANSIT AUTHORITY, ) ) JUDGE RICHARD A. BELL Plaintiff, ) ) v. ) DEFENDANT CITY OF CLEVELAND’S ) SUPPLEMENTAL RESPONSE TO CITY OF CLEVELAND. ) PLAINTIFF’S SECOND REQUEST FOR ) PRODUCTION Defendant. Pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Defendants, the City of Cleveland, non suijuris City of Cleveland Division of Water, Juan Elliott, Henry Hughes, Michael Doyle, Renaldo Stallworth, Nathan Smith, and Kenneth Fedrick (“Defendants”) submit the following Supplemental Responses to Plaintiffs Request for Production of documents (“RFP”). Defendants reserve the right to revise, delete, amend, correct, or otherwise supplement these supplemental responses throughout the discovery process. GENERAL OBJECTIONS A. Defendant objects to Plaintiffs definitions and instructions to the extent they are in any way intended to specify, limit, condition, or expand the scope of this action. Defendant objects to all definitions that exceed the scope of the Ohio Rules of Civil Procedure and/or attempt to compel Defendant to respond in a particular manner. B. Defendant objects to each RFP to the extent that it seeks information protected by the attorney-client and/or work product privileges to which Defendant might be entitled as a matter of law. C. Defendant generally objects to these RFPs to the extent they seek information either not Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW related to the subject matter of the above-entitled litigation or not reasonably calculated to lead to the discovery of evidence relevant to a claim or defense or a party in this case. D. Defendant objects to any RFP that seeks information that is equally available to Plaintiff from public or other sources and interrogatories that seek information which can only be obtained from individuals not currently employed by Defendant, or which purports to be applicable to persons or entities other than Defendant as such interrogatories are beyond the scope of the Ohio Rules of Civil Procedure. E. The following objections and answers are based on information presently known after good faith investigation and in light of the present state of discovery. Defendant’s objections and answers are made without prejudice to its right to rely upon subsequently discovered facts, and therefore Defendant reserves the right to supplement its objections and answers upon the discovery of such information. F. The following responses are supplemental to the initial responses, in that they merely supplement prior responses for the purpose of providing continuing information throughout litigation in good-faith. They do not necessarily, or simply by virtue of the substance contained within such response, contradict, alter, or negate previously filed responses. RESPONSES 1. Any and all documents that substantiate the denials set forth in Paragraphs 3, 5, 7, 8 and 9 of the Answer of Defendant City of Cleveland to the Plaintiffs Complaint. RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited in scope and/or specified parameters, overly broad, and unduly burdensome. In addition, said request calls for information protected by the attorney-client and/or work-product privileges. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW 2. Any and all documents that support the defenses affirmatively asserted in Paragraphs 15, 16, 17, 18, 19, 20, 21 and 24 of the Answer of Defendant City of Cleveland to the Plaintiffs Complaint. RESPONSE: Objection. The request is vague, ambiguous, not clearly defined, not limited in scope and/or specified parameters, overly broad, and unduly burdensome. In addition, said request calls for information protected by the attorney-client and/or work-product privileges. 3. Legible copies of any and all documents, emails, meeting notes regarding the City’s denial of Plaintiff GCRTA’s damages in Claim No. 7758. RESPONSE: Objection. The request is vague, ambiguous, overly broad, and not reasonably calculated to lead to admissible evidence. In addition, said request calls for information protected by the attorney-client and/or work-product privileges. Objection notwithstanding, and without waiving, the requested documents were previously provided to Plaintiffs counsel via e-mail on July 15, 2022 with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001-CLE000040}. 4. Any and all maintenance records for the water main/pipe segment that broke/failed and is at issue in this case. RESPONSE: Objection. The request is overly broad, not limited in time or scope, and unduly burdensome. Objection notwithstanding, and without waiving, there are no maintenance Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW records in Defendants’ possession for the two years preceding the subject incident (April 2018 to April 2020). 5. Any and all Field Investigation Report documents of the area/vicinity where the water main break occurred. RESPONSE: See attached documents, Bates Stamped: CLE000041- CLE000043. 6. Any and all work orders for the water man repair at issue in this case. RESPONSE: See attached documents, Bates Stamped: CLE000044- CLE000064 for work orders associated with the repair and restoration of the vicinity. 7. The GIS map of the subject water main. RESPONSE: See attached documents, Bates Stamped: CLE000065. 8. Any and all procedures including written, oral, videotape, interoffice communications, bulletins, memos, training materials/manuals for repairing a broken water main. RESPONSE: Objection. The request is overly broad, not limited in scope and/or specified parameters, unduly burdensome, vague, ambiguous, and/or trade secrets. Objection notwithstanding, and without waiving, none in Defendants’ possession. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW 9. All press releases, public announcements, notifications, text messages, broadcasts, communications, sent/received to anyone regarding the water main break that is the subject of this litigation. RESPONSE: Objection. The request is overly broad, vague, ambiguous, unduly burdensome, calls for information that is equally accessible, calls for information not in our possession, calls for information protected by attorney-client and work-product privilege, and is not reasonably calculated to lead to admissible evidence. 10. Legible copies of any expense reports, receipts, checks, payments for tools, equipment and materials used to repair the broken water main. RESPONSE: Objection. The request is overly broad, unduly burdensome, ambiguous, calls for information not in our possession or does not exist, and is not reasonably calculated to lead to admissible evidence. 11. Legible copies of all persons who repaired the broken water main, timesheets, work records, attendance reports, pay records for the time period the pipe was repaired. RESPONSE: Objection. This request is overly broad, vague, ambiguous, unduly burdensome, calls for certain information that is equally available to Plaintiff, and is not reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without waiving, defense counsel has commenced the request-process for personnel files, and, upon Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW receipt, will review the documents to assess the appropriateness of disclosure to plaintiffs counsel, redactions, and confidential information. 12. Legible copies of the reports of all experts that will testify at the trial of this case for Defendant. RESPONSE: None at this time. Defendants reserve the right to call an expert and will comply with the Court’s next Case Management Order 13. Legible copies of all employees’ personnel files that were involved with the repair of the water main that is the subject of this litigation. RESPONSE: Objection. This request is overly broad, unduly burdensome, calls for information that is equally available to Plaintiff, and is not reasonably calculated to lead to admissible evidence. Objection notwithstanding, and without waiving, defense counsel has commenced the request-process for personnel files, and, upon receipt, will review the documents to assess the appropriateness of disclosure to plaintiffs counsel, redactions, and confidential information. 14. The unabridged examination file of “Heather Fulton” regarding Claim No. 7758. RESPONSE: In addition, said request calls for information protected by the attorney client and/or work-product privileges. Objection notwithstanding, and without waiving, the Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW requested documents were previously provided to Plaintiffs counsel via e-mail on July 15,2022 with Defendants’ Initial Disclosures (see Initial Disclosures Bates Stamped CLE000001- CLE000040). 15. Any and all repair estimates to repair the damage to Plaintiffs bus shelter including its foundation, communication and power cabinets. RESPONSE: Objection. Calls for information protected by attorney-client and/or work product privileges. Objection notwithstanding, and without waiving, a repair estimate was prepared by, and in the possession of, Plaintiff. Respectfully submitted, MARK D. GRIFFIN DIRECTOR OF LAW By: Zs/Affan All AffanAli (101909) Assistant Director of Law City of Cleveland Department of Law 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 Tel: (216)664-2852 E-mail: aali2@clevelandohio.gov Attorneys for Defendant City of Cleveland CERTIFICATE OF SERVICE I certify that on May 9th, 2023,1 served a true and accurate copy of the foregoing via email to Plaintiffs counsel and any other counsel registered or appearing in this matter. Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW /s/ Affan Ali One of the Attorneys for Defendant City of Cleveland Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW c.itvwo) k-i i Priority: 1 Category: CWDCC Submit To: Hughes, Henry Initiated By: Pickens, Christina Date: 4/14/2020 2:16:12PM Supervisor: CWD Comm, Dispatch Requested By: CWD Comm, Dispatch Submit to Date: 4/14/2020 2:16:12PM Projected Start: 4/14/2020 2:16:12PM Projected Finish: 4/14/2020 2:16:12PM Opened By: Hughes, Henry Date: 4/14/2020 2:48:19PM Closed By: Pickens, Christina Date: 4/14/2020 3:55:23PM Completed By: Hughes, Henry Actual Start: 4/14/2020 2:40:22PM Actual Finish: 4/14/2020 3:45:00PM Stage: ACTUAL Expense Type: MAINT Tasks: Name Description Status Proceed? Assets: Type Did Location CWDWOTHER-CC 0 Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW C[_E000041 Page 1 of 1 5/8/2023 r o o Z re .t± b 'n X UJ 0) LL co O CL n D § O □ . 0) o O (f) V) >‘ re .9 £ a > CD c: CD CD O CL D E c cn o -3d *•“ o Q. re □ _Q CD CD c c E E U) tf) > > > > o o o o o 0) re □ CT CO n O ex w CD re T~ b CM c b >. (P E c O CD c u E QJ o c 0J £Z 0) e x CM T O T o O cd CD 0) O 0) CM xF in tn 0) CO Q xz o c XZ g V) o o o CD O O o o Q o i_ O o ? r^;j- l :1<,U( Priority: 1 Category: CWDCC Submit To: CWD Comm, Dispatch Initiated By: Anderson, Carmen Date: 4/14/2020 12:47:39PM WO Needed: N Investigation Date: 4/14/2020 3:55:24PM Submit To Date: 4/14/2020 12:47:39PM Dispatch To: Date: Project Name Prj. Comp. Date: Incident Information: Address: Euclid Ave & Superior Ave, East Cleveland, 44112 East Cleveland, Apt#: Landmark: Shop Tile No: 990 Non-Campus Location Map Page: District: CWD02 Location X: 2217804 Y: 677647 Details: PER Police Dept. Callers: Last Name First Name Call Time UNKNOWN SHAWN 4/14/2020 12:46:41PM Work Orders: Id: Description Priority: Status: Submit To: Electronically Filed 10/03/2023 16:14 / MOTION / CV 22 962307 / Confirmation Nbr. 2981051 / CLAMW Page 1 of 1 CLE000044 5/8/2023 b- CO CD C CD E > CO xt E CD b-‘ o