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CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 1 of 10
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
ANTHONY RIVIOTTA, ) CASE NO. CV-2022-11-3785
)
Plaintiff, ) JUDGE JOY M. OLDFIELD
)
vs. )
)
DONALD SCHUMITSH, et al., ) PLAINTIFF, ANTHONY RIVIOTTA,
) AND NON-PARTY, DANE J. DONICH,
Defendants. ) M.D.’S, JOINT MOTION TO QUASH
) THE SUBPOENA DUCES TECUM SENT
) TO DANE J. DONICH, M.D., AND
) SUMMA HEALTH MEDICAL GROUP –
) NEUROSCIENCE INSTITUTE
Now comes the Plaintiff, Anthony Riviotta, by and through the undersigned counsel, and
Dane J. Donich, M.D., a non-party to this case, who jointly move this Honorable Court to quash the
subpoena duces tecum sent to the offices of Dane J. Donich, M.D. and Summa Health Medical
Group, Neuroscience Institute on October 10, 2023. A Memorandum in support is attached hereto.
Respectfully submitted,
/s/ David Best /s/ Nomiki Tsarnas
David Best (0014349) Nomiki P. Tsarnas #0076134
Attorney for Dane J. Donich, M.D. Attorney for Plaintiff Anthony Riviotta
4900 West Bath Road 22 E. McKinley Way, Suite A
Akron, OH 44333 Poland, OH 44514
Phone: 330-714-8620 Phone: 330-729-1090
Fax: 330-666-5755 Fax: 330-869-9008
DMBLPA@gmail.com tsarnas@knrlegal.com
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MEMORANDUM IN SUPPORT
I. RELEVANT FACTS
This negligence case stems from a motor vehicle accident that occurred on February 8,
2021, when the Defendant, Donald Schumitsh, collided with the Plaintiff’s vehicle causing him
injury. Dr. Donich, a non-party to this case, is the treating physician of Plaintiff, Anthony Riviotta.
Dr. Donich assumed the care of Plaintiff after his prior neurosurgeon retired. He is the on-call
neurosurgeon every other night at a level one trauma center and sees countless patients,
performing over 500 surgeries annually.
On October 10, 2023, Dr. Donich was served a subpoena duces tecum at his office located
in Summit County. The subpoena commanded Dr. Donich to produce an overwhelmingly
burdensome amount of data, requiring each dataset request to include a timespan of five years. In
lieu of appearing, Dr. Donich was given the option to mail or email the requested documentation to
Defendant’s counsel before November 6, 2023. The information requested includes a wide range of
data, including copies of all PowerPoint presentations or outlines produced for talks or speeches by
Dr. Donich, to all records, “but not limited to W2’s, 1099’S, corporate tax returns, and other
documents showing compensation received by Summa Health Medical Group, Neuroscience
Institute for the calendar years 2017-2022.”
Pursuant to Civil Rule 45, when a motion to quash is made on the grounds of undue
burden, "The court shall quash or modify the subpoena unless the party in whose behalf
the subpoena is issued shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated." Wattley v. Rinaldi, C.P. No. 2021CV00982, 2022
Ohio Misc. LEXIS 2471, at *7 (Apr. 6, 2022).
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II. LAW AND ARGUMENT
A. THE SUBPOENA SUBJECTS DR. DONICH TO UNDUE BURDEN AND
THEREFORE THE COURT MUST QUASH THE SUBPOENA PURSUANT TO
CIVIL RULE 45(C)(D).
Civil Rule 45(C)(D), titled “Protections of Persons Subject to Subpoenas” states:
On timely motion, the court from which the subpoena was issued shall quash or
modify the subpoena, or order appearance or production only under specified
conditions, if the subpoena does any of the following:
(a) Fails to allow reasonable time to comply;
(b) Requires disclosure of privileged or otherwise protected matter and no
exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an expert not retained
or specially employed by any party in anticipation of litigation or preparation for
trial as described by Civ.R. 26(B)(7)(h), if the fact or opinion does not describe
specific events or occurrences in dispute and results from study by that expert that
was not made at the request of any party;
(d) Subjects a person to undue burden.
In the subpoena, the Defendant directs Dr. Donich, who is non-party to this proceeding,
to produce an expansive amount data which goes beyond the scope of permissible inquiry.
Specifically, this request seeks “All records, including, but not limited to W2's, 1099's, Corporate
Tax Returns, and other documents showing compensation received by Summa Health Medical
Group, Neuroscience Institute for the calendar years 2017-2022.”
Pursuant to Civil Rule 26(A)(1), material sought in discovery must be relevant to the
subject matter of the pending action and must relate to a claim or defense of a party. This Court
has consistently associated the relevancy rule with non-parties. Kelly v. Fryer, C.P. No. CV 2010
04 3049 21, 2010 Ohio Misc. LEXIS 24291, at *6 (Nov. 1, 2010). To request a non-party entity
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and individual for all financial compensation documents over the course of five years, for any
matter, and any circumstance, is overly broad in scope.
Aside from a few demands, the Defendant’s subpoena lacks specificity as there are nearly
unlimited parameters stated that claim to correlate to the instant case.
We will address each request of the subpoena below.
1. All documents regarding the medical expert witness certificate previously issued to
you by the board of medicine for the State of Ohio.
Dr. Donich does not possess a medical expert witness certificate. A medical expert
certificate is not required in the State of Ohio.
2. All records pertaining to the number of medical-legal related exams and medical
record reviews performed by you at the request of an attorney or insurance company
for calendar years 2017-2022.
Dr. Donich estimates that he is involved with legal work for other law firms for
injured clients ten to twenty times per year.
3. All records pertaining to the number of medical-legal related case reviews performed
at the request of an attorney or insurance company by you for the bureau of workers
compensation for calendar years 2017-2022.
This request is irrelevant to the instant case.
4. All records, including but not limited to, W2s, 1099s, corporate tax returns, and other
tax documents, showing the amount of compensation received by you, your office,
and all entities used by you for hired medical related examinations, medical records
reviews, and all medical-legal work for calendar years 2017- 2022, including all of
the following entities: a. Summa Health Medical Group, Neuroscience Institute b.
Donich Neurosurgery and Spine, LLC c. Dr. Dane J. Donich, M.D.
A request for documents of all tax filings and compensation received by the
business entity is beyond the scope of the instant case.
5. The tax identification number for Summa Health Medical Group, Neuroscience
Institute.
Dr. Donich does not contest this request.
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6. All records, including, but not limited to W2's, 1099's, Corporate Tax Returns, and
other documents showing compensation received by Summa Health Medical Group,
Neuroscience Institute for the calendar years 2017-2022.
A request for documents of all tax filings and compensation received by the
business entity is beyond the scope of the instant case.
7. All records, including, but not limited to, W2's, 1099's, corporate tax returns, and
other documents showing compensation received by you, your office, Summa Health
Medical Group — Neuroscience Institute, and all entities used by you for medical-
legal related examinations, record reviews and medical legal work performed for the
calendar years 2017-2022.
A request for documents of all tax filings and compensation received by the
business entity is beyond the scope of the instant case.
8. A "testimony list," or list of all medical-legal cases you have testified in as a witness
via deposition and live testimony identified by name, case number, and the county in
which the action was venued for the calendar years 2017-2022.
Documentation of a “testimony list” is not required by state courts in Ohio.
9. All records showing the agreed upon compensation rate for you, your office, and all
entities used by you, including, but not limited to, Summa Health Medical Group,
Neuroscience Institute for work performed in the above captioned litigation.
Dr. Donich has been compensated $2,063 for the 5.5 hours of work he spent
reviewing the medical records and for preparing a report. The hourly rate of Dr.
Donich for such work is $375.
10. All records showing the agreed upon compensation rate for you if you should you be
deposed, in this litigation.
Dr. Donich estimates that should he be deposed at trial, the cost for preparation,
trial and travel time would be $4,500 depending upon the time commitment
requirement.
Dr. Donich estimates that should he be required to provide a video deposition for
this case, the costs and preparation are estimated to be $3,000, depending upon the
amount of time involved.
11. All records showing the agreed upon compensation rate for you to testify at trial in
this litigation.
The hourly compensation rate is $375. Additional information is contained in the
previously disclosed medical report produced on October 2, 2023.
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12. Your entire file for Anthony Riviotta, including but not limited to, hard copies of e-
mails sent and received, any and all reports, letters, memoranda, and/or notes
generated and notes, handwritten or otherwise, graphs, computer printouts, all
documents completed by the claimant, copies of tests and tests results completed by
your office or at your direction and all models, illustrations, photographs, exhibits or
documents of any kind which you intend or contemplate using to explain illustrate, or
support your testimony at the trial of this matter.
Dr. Donich does not contest this request.
13. All handwritten notes generated by you regarding Anthony Riviotta.
Dr. Donich does not have any handwritten notes.
14. All records generated during the medical examination of Anthony Riviotta.
Dr. Donich does not contest this request.
15. All records of time spent by you and/or anyone employed by you, and all records of
activities performed in reviewing records, examining, evaluating, or reporting on the
examination of Anthony Riviotta.
Dr. Donich does not contest this request.
16. All records regarding the amount charged and compensation received by you, your
office, and/or all entities used by you for your role in this litigation.
Dr. Donich has been compensated $2,063 for the 5.5 hours of work he spent
reviewing the medical records and for preparing a report. The hourly rate of Dr.
Donich for such work is $375.
17. A list of all publications authored by you within the preceding ten (10) years.
This request is unduly burdensome given the decade-long timeframe.
18. All tax identification numbers used by you, your office, and all entities used by you
for work performed in the above captioned litigation, and/or entities you own or
control for the purpose of medical-legal work along with the name of each entity.
The requested identification numbers are irrelevant.
19. All W2s or 1099s, corporate tax returns and other tax documents evidencing
payments made to you and/or partnerships, corporations or other business entities that
have received compensation in exchange for your performance of medical related
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exams, medical records reviews or other medical/legal work for non-patients for the
past three (3) tax years.
A request for documents of all tax filings and compensation received by the
business entity is beyond the scope of the instant case.
20. A list of all medical reports which have been generated by you with respect to
medical-legal work that you, your office, and all entities used by you, including, but
not limited to Summa Health Medical Group, Neuroscience Institute for hired
medical related examinations, medical records reviews, and all medical/legal work,
have performed for calendar years 2017- 2022 indicating who hired you for each
report
This request is unduly burdensome. The term “medical reports” includes a vast
amount data that falls outside the scope of relevancy for the instant case.
21. Please produce a list of all cases in which you have given deposition testimony, from
calendar years 2017-2022, and for each case indicate whether such testimony was on
behalf of the plaintiff or the defendant. Please produce a list of all cases in which you
have provided trial testimony, from calendar years 2017-2022, and for each case,
indicate whether such testimony was on behalf of the plaintiff or the defendant.
Documentation of a “testimony list” is not required by state courts in Ohio.
22. Please produce a list of all medical-legal work that you have performed on behalf of
State Farm Mutual Automobile Insurance Company from calendar years 2017-2022.
Dr. Donich estimates that he performed legal work on behalf of defense counsel
twenty times over the course of his career.
23. Please produce a list of all medical-legal work that you have performed on behalf of
Kisling, Nestico & Redick, LLC from calendar years 2017-2022.
Dr. Donich estimates that he is involved with legal work on behalf of injured
Kisling, Nestico, & Redick, LLC clients between ten and twenty times per year, on
average. He estimates that 80% of the work he has done for Kisling, Nestico, &
Redick, LLC is on behalf of his active patients, as is the case with Plaintiff.
24. All your business state, federal, and municipal income returns for entities engaged in
any aspect of the medical-legal work you perform from calendar years 2017-2022.
Dr. Donich does not have a specific business entity for legal work. A request for
documents of all personal tax filings is beyond the scope of the instant case.
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25. To the extent that income received by you for medical-legal work performed by you
is reflected on personal income tax returns please produce those tax returns from
calendar year 2018 to 2017 to calendar year 2022.
A request for documents of all personal tax filings is beyond the scope of the
instant case.
26. Your current curriculum vitae.
Dr. Donich does not contest this request.
27. Copies of any and all PowerPoint (or keynote or other) presentations and/or outlines
given or outlines produced for any talks and speeches you have given for the calendar
years 2017-2022.
This request is irrelevant and overly broad.
B. THE SUBPOENA SUBJECTS DR. DONICH, A NON-PARTY TO PRODUCE
PROTECTED MATTER THEREFORE PURSUANT TO CIVIL RULE (C)(3)(B)
THE COURT MUST QUASH THE REQUEST.
Information demanded in request numbers: three, four, six, seven, nineteen, twenty-four,
and twenty-five, are overly broad in that they would require production of documents that include
the privileged healthcare information of patients who are not parties to this litigation as well as the
personal financial information of the doctor, healthcare entity, and patients without regard to their
relevance of this particular action. Moreover, redaction of this protected information from
documents and datasets comprised of thousands of files would be unduly burdensome and
disproportionate to the discovery needs in this case.
“When subpoenas are issued to nonparties pursuant to Civ.R. 45, the Court
must quash any request that requires disclosure of privileged or otherwise protected matter and
no exception or waiver applies or that subjects a person to undue burden. Civ.R. 45(C)(3)(b.”
Wattley v. Rinaldi, C.P. No. 2021CV00982, 2022 Ohio Misc. LEXIS 2471, at *7 (Apr. 6, 2022).
C. PURSUSANT TO CIVIL RULE 45, AN ORDER TO COMPEL PRODUCTION
SHALL PROTECT ANY PERSON WHO IS NOT A PARTY FROM SIGNIFICANT
EXPENSE RESULTING FROM THE PRODUCTION COMMANDED.
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In addition to the objections previously stated, retrieval of irrelevant and marginally relevant
documents and information sought by Defendant would result in substantial, disproportionate, and
unfair expense to Dr. Donich and Summa Health Medical Group. Upon review by Dr. Donich and
his staff, should he and the medical group be compelled to produce every document requested in
the subpoena, multiple days of dedicated personnel will be required to comply with this order.
The estimated staff number required is four individuals, working full-time over the course of one
week, in addition to three full days of Dr. Donich, each personally dedicated to compiling this
data. The total estimated cost of this undertaking exceeds $10,000.
It has been established that when a court orders compliance with a subpoena over an
objection, the court has the discretion to shift those costs to the subpoena issuer. “This provision
has been deemed to "make cost shifting mandatory in all instances which a non-party incurs
significant expense from compliance with a subpoena." Linglong Ams. Inc. v. Horizon Tire, Inc.,
N.D.Ohio No. 1:15CV1240, 2018 U.S. Dist. LEXIS 57777, at *7 (Apr. 4, 2018).
Should Dr. Donich and the Summa Health Medical Group be required to comply with all
aspects of the subpoena, reimbursement for this compliance is justified.
CONCLUSION
For the foregoing reasons, the subpoena duces tecum issued to Dr. Donich and the Summa
Medical Group, Neuroscience Institute, must be quashed. Alternatively, to the extent the Court
orders production of the requested documents and information, Dr. Donich and Summa request that
the Court require Defendant to prepay the cost of retrieval and redaction.
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Respectfully submitted,
/s/ David Best
David Best (0014349)
4900 West Bath Road
Akron, OH 44333
Phone: 330-714-8620
Fax: 330-666-5755
DMBLPA@gmail.com
Counsel for Dane J. Donich, M.D.
/s/ Nomiki Tsarnas
Nomiki P. Tsarnas #0076134
22 E. McKinley Way, Suite A
Poland, OH 44514
Phone: 330-729-1090
Fax: 330-869-9008
tsarnas@knrlegal.com
Counsel for Plaintiff Anthony Riviotta
CERTIFICATE OF SERVICE
I hereby certify that a copy of the forgoing was served by the courts electronic
filing system.
/s/David Best
David Best
Attorney for Dane J. Donich, M.D.
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Sandra Kurt, Summit County Clerk of Courts
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CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 1 of 10 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO ANTHONY RIVIOTTA, ) CASE NO. CV-2022-11-3785 ) Plaintiff, ) JUDGE JOY M. OLDFIELD ) vs. ) ) DONALD SCHUMITSH, et al., ) PLAINTIFF, ANTHONY RIVIOTTA, ) AND NON-PARTY, DANE J. DONICH, Defendants. ) M.D.’S, JOINT MOTION TO QUASH ) THE SUBPOENA DUCES TECUM SENT ) TO DANE J. DONICH, M.D., AND ) SUMMA HEALTH MEDICAL GROUP – ) NEUROSCIENCE INSTITUTE Now comes the Plaintiff, Anthony Riviotta, by and through the undersigned counsel, and Dane J. Donich, M.D., a non-party to this case, who jointly move this Honorable Court to quash the subpoena duces tecum sent to the offices of Dane J. Donich, M.D. and Summa Health Medical Group, Neuroscience Institute on October 10, 2023. A Memorandum in support is attached hereto. Respectfully submitted, /s/ David Best /s/ Nomiki Tsarnas David Best (0014349) Nomiki P. Tsarnas #0076134 Attorney for Dane J. Donich, M.D. Attorney for Plaintiff Anthony Riviotta 4900 West Bath Road 22 E. McKinley Way, Suite A Akron, OH 44333 Poland, OH 44514 Phone: 330-714-8620 Phone: 330-729-1090 Fax: 330-666-5755 Fax: 330-869-9008 DMBLPA@gmail.com tsarnas@knrlegal.com 1 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 2 of 10 MEMORANDUM IN SUPPORT I. RELEVANT FACTS This negligence case stems from a motor vehicle accident that occurred on February 8, 2021, when the Defendant, Donald Schumitsh, collided with the Plaintiff’s vehicle causing him injury. Dr. Donich, a non-party to this case, is the treating physician of Plaintiff, Anthony Riviotta. Dr. Donich assumed the care of Plaintiff after his prior neurosurgeon retired. He is the on-call neurosurgeon every other night at a level one trauma center and sees countless patients, performing over 500 surgeries annually. On October 10, 2023, Dr. Donich was served a subpoena duces tecum at his office located in Summit County. The subpoena commanded Dr. Donich to produce an overwhelmingly burdensome amount of data, requiring each dataset request to include a timespan of five years. In lieu of appearing, Dr. Donich was given the option to mail or email the requested documentation to Defendant’s counsel before November 6, 2023. The information requested includes a wide range of data, including copies of all PowerPoint presentations or outlines produced for talks or speeches by Dr. Donich, to all records, “but not limited to W2’s, 1099’S, corporate tax returns, and other documents showing compensation received by Summa Health Medical Group, Neuroscience Institute for the calendar years 2017-2022.” Pursuant to Civil Rule 45, when a motion to quash is made on the grounds of undue burden, "The court shall quash or modify the subpoena unless the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated." Wattley v. Rinaldi, C.P. No. 2021CV00982, 2022 Ohio Misc. LEXIS 2471, at *7 (Apr. 6, 2022). 2 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 3 of 10 II. LAW AND ARGUMENT A. THE SUBPOENA SUBJECTS DR. DONICH TO UNDUE BURDEN AND THEREFORE THE COURT MUST QUASH THE SUBPOENA PURSUANT TO CIVIL RULE 45(C)(D). Civil Rule 45(C)(D), titled “Protections of Persons Subject to Subpoenas” states: On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following: (a) Fails to allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies; (c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(7)(h), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party; (d) Subjects a person to undue burden. In the subpoena, the Defendant directs Dr. Donich, who is non-party to this proceeding, to produce an expansive amount data which goes beyond the scope of permissible inquiry. Specifically, this request seeks “All records, including, but not limited to W2's, 1099's, Corporate Tax Returns, and other documents showing compensation received by Summa Health Medical Group, Neuroscience Institute for the calendar years 2017-2022.” Pursuant to Civil Rule 26(A)(1), material sought in discovery must be relevant to the subject matter of the pending action and must relate to a claim or defense of a party. This Court has consistently associated the relevancy rule with non-parties. Kelly v. Fryer, C.P. No. CV 2010 04 3049 21, 2010 Ohio Misc. LEXIS 24291, at *6 (Nov. 1, 2010). To request a non-party entity 3 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 4 of 10 and individual for all financial compensation documents over the course of five years, for any matter, and any circumstance, is overly broad in scope. Aside from a few demands, the Defendant’s subpoena lacks specificity as there are nearly unlimited parameters stated that claim to correlate to the instant case. We will address each request of the subpoena below. 1. All documents regarding the medical expert witness certificate previously issued to you by the board of medicine for the State of Ohio. Dr. Donich does not possess a medical expert witness certificate. A medical expert certificate is not required in the State of Ohio. 2. All records pertaining to the number of medical-legal related exams and medical record reviews performed by you at the request of an attorney or insurance company for calendar years 2017-2022. Dr. Donich estimates that he is involved with legal work for other law firms for injured clients ten to twenty times per year. 3. All records pertaining to the number of medical-legal related case reviews performed at the request of an attorney or insurance company by you for the bureau of workers compensation for calendar years 2017-2022. This request is irrelevant to the instant case. 4. All records, including but not limited to, W2s, 1099s, corporate tax returns, and other tax documents, showing the amount of compensation received by you, your office, and all entities used by you for hired medical related examinations, medical records reviews, and all medical-legal work for calendar years 2017- 2022, including all of the following entities: a. Summa Health Medical Group, Neuroscience Institute b. Donich Neurosurgery and Spine, LLC c. Dr. Dane J. Donich, M.D. A request for documents of all tax filings and compensation received by the business entity is beyond the scope of the instant case. 5. The tax identification number for Summa Health Medical Group, Neuroscience Institute. Dr. Donich does not contest this request. 4 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 5 of 10 6. All records, including, but not limited to W2's, 1099's, Corporate Tax Returns, and other documents showing compensation received by Summa Health Medical Group, Neuroscience Institute for the calendar years 2017-2022. A request for documents of all tax filings and compensation received by the business entity is beyond the scope of the instant case. 7. All records, including, but not limited to, W2's, 1099's, corporate tax returns, and other documents showing compensation received by you, your office, Summa Health Medical Group — Neuroscience Institute, and all entities used by you for medical- legal related examinations, record reviews and medical legal work performed for the calendar years 2017-2022. A request for documents of all tax filings and compensation received by the business entity is beyond the scope of the instant case. 8. A "testimony list," or list of all medical-legal cases you have testified in as a witness via deposition and live testimony identified by name, case number, and the county in which the action was venued for the calendar years 2017-2022. Documentation of a “testimony list” is not required by state courts in Ohio. 9. All records showing the agreed upon compensation rate for you, your office, and all entities used by you, including, but not limited to, Summa Health Medical Group, Neuroscience Institute for work performed in the above captioned litigation. Dr. Donich has been compensated $2,063 for the 5.5 hours of work he spent reviewing the medical records and for preparing a report. The hourly rate of Dr. Donich for such work is $375. 10. All records showing the agreed upon compensation rate for you if you should you be deposed, in this litigation. Dr. Donich estimates that should he be deposed at trial, the cost for preparation, trial and travel time would be $4,500 depending upon the time commitment requirement. Dr. Donich estimates that should he be required to provide a video deposition for this case, the costs and preparation are estimated to be $3,000, depending upon the amount of time involved. 11. All records showing the agreed upon compensation rate for you to testify at trial in this litigation. The hourly compensation rate is $375. Additional information is contained in the previously disclosed medical report produced on October 2, 2023. 5 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 6 of 10 12. Your entire file for Anthony Riviotta, including but not limited to, hard copies of e- mails sent and received, any and all reports, letters, memoranda, and/or notes generated and notes, handwritten or otherwise, graphs, computer printouts, all documents completed by the claimant, copies of tests and tests results completed by your office or at your direction and all models, illustrations, photographs, exhibits or documents of any kind which you intend or contemplate using to explain illustrate, or support your testimony at the trial of this matter. Dr. Donich does not contest this request. 13. All handwritten notes generated by you regarding Anthony Riviotta. Dr. Donich does not have any handwritten notes. 14. All records generated during the medical examination of Anthony Riviotta. Dr. Donich does not contest this request. 15. All records of time spent by you and/or anyone employed by you, and all records of activities performed in reviewing records, examining, evaluating, or reporting on the examination of Anthony Riviotta. Dr. Donich does not contest this request. 16. All records regarding the amount charged and compensation received by you, your office, and/or all entities used by you for your role in this litigation. Dr. Donich has been compensated $2,063 for the 5.5 hours of work he spent reviewing the medical records and for preparing a report. The hourly rate of Dr. Donich for such work is $375. 17. A list of all publications authored by you within the preceding ten (10) years. This request is unduly burdensome given the decade-long timeframe. 18. All tax identification numbers used by you, your office, and all entities used by you for work performed in the above captioned litigation, and/or entities you own or control for the purpose of medical-legal work along with the name of each entity. The requested identification numbers are irrelevant. 19. All W2s or 1099s, corporate tax returns and other tax documents evidencing payments made to you and/or partnerships, corporations or other business entities that have received compensation in exchange for your performance of medical related 6 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 7 of 10 exams, medical records reviews or other medical/legal work for non-patients for the past three (3) tax years. A request for documents of all tax filings and compensation received by the business entity is beyond the scope of the instant case. 20. A list of all medical reports which have been generated by you with respect to medical-legal work that you, your office, and all entities used by you, including, but not limited to Summa Health Medical Group, Neuroscience Institute for hired medical related examinations, medical records reviews, and all medical/legal work, have performed for calendar years 2017- 2022 indicating who hired you for each report This request is unduly burdensome. The term “medical reports” includes a vast amount data that falls outside the scope of relevancy for the instant case. 21. Please produce a list of all cases in which you have given deposition testimony, from calendar years 2017-2022, and for each case indicate whether such testimony was on behalf of the plaintiff or the defendant. Please produce a list of all cases in which you have provided trial testimony, from calendar years 2017-2022, and for each case, indicate whether such testimony was on behalf of the plaintiff or the defendant. Documentation of a “testimony list” is not required by state courts in Ohio. 22. Please produce a list of all medical-legal work that you have performed on behalf of State Farm Mutual Automobile Insurance Company from calendar years 2017-2022. Dr. Donich estimates that he performed legal work on behalf of defense counsel twenty times over the course of his career. 23. Please produce a list of all medical-legal work that you have performed on behalf of Kisling, Nestico & Redick, LLC from calendar years 2017-2022. Dr. Donich estimates that he is involved with legal work on behalf of injured Kisling, Nestico, & Redick, LLC clients between ten and twenty times per year, on average. He estimates that 80% of the work he has done for Kisling, Nestico, & Redick, LLC is on behalf of his active patients, as is the case with Plaintiff. 24. All your business state, federal, and municipal income returns for entities engaged in any aspect of the medical-legal work you perform from calendar years 2017-2022. Dr. Donich does not have a specific business entity for legal work. A request for documents of all personal tax filings is beyond the scope of the instant case. 7 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 8 of 10 25. To the extent that income received by you for medical-legal work performed by you is reflected on personal income tax returns please produce those tax returns from calendar year 2018 to 2017 to calendar year 2022. A request for documents of all personal tax filings is beyond the scope of the instant case. 26. Your current curriculum vitae. Dr. Donich does not contest this request. 27. Copies of any and all PowerPoint (or keynote or other) presentations and/or outlines given or outlines produced for any talks and speeches you have given for the calendar years 2017-2022. This request is irrelevant and overly broad. B. THE SUBPOENA SUBJECTS DR. DONICH, A NON-PARTY TO PRODUCE PROTECTED MATTER THEREFORE PURSUANT TO CIVIL RULE (C)(3)(B) THE COURT MUST QUASH THE REQUEST. Information demanded in request numbers: three, four, six, seven, nineteen, twenty-four, and twenty-five, are overly broad in that they would require production of documents that include the privileged healthcare information of patients who are not parties to this litigation as well as the personal financial information of the doctor, healthcare entity, and patients without regard to their relevance of this particular action. Moreover, redaction of this protected information from documents and datasets comprised of thousands of files would be unduly burdensome and disproportionate to the discovery needs in this case. “When subpoenas are issued to nonparties pursuant to Civ.R. 45, the Court must quash any request that requires disclosure of privileged or otherwise protected matter and no exception or waiver applies or that subjects a person to undue burden. Civ.R. 45(C)(3)(b.” Wattley v. Rinaldi, C.P. No. 2021CV00982, 2022 Ohio Misc. LEXIS 2471, at *7 (Apr. 6, 2022). C. PURSUSANT TO CIVIL RULE 45, AN ORDER TO COMPEL PRODUCTION SHALL PROTECT ANY PERSON WHO IS NOT A PARTY FROM SIGNIFICANT EXPENSE RESULTING FROM THE PRODUCTION COMMANDED. 8 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 9 of 10 In addition to the objections previously stated, retrieval of irrelevant and marginally relevant documents and information sought by Defendant would result in substantial, disproportionate, and unfair expense to Dr. Donich and Summa Health Medical Group. Upon review by Dr. Donich and his staff, should he and the medical group be compelled to produce every document requested in the subpoena, multiple days of dedicated personnel will be required to comply with this order. The estimated staff number required is four individuals, working full-time over the course of one week, in addition to three full days of Dr. Donich, each personally dedicated to compiling this data. The total estimated cost of this undertaking exceeds $10,000. It has been established that when a court orders compliance with a subpoena over an objection, the court has the discretion to shift those costs to the subpoena issuer. “This provision has been deemed to "make cost shifting mandatory in all instances which a non-party incurs significant expense from compliance with a subpoena." Linglong Ams. Inc. v. Horizon Tire, Inc., N.D.Ohio No. 1:15CV1240, 2018 U.S. Dist. LEXIS 57777, at *7 (Apr. 4, 2018). Should Dr. Donich and the Summa Health Medical Group be required to comply with all aspects of the subpoena, reimbursement for this compliance is justified. CONCLUSION For the foregoing reasons, the subpoena duces tecum issued to Dr. Donich and the Summa Medical Group, Neuroscience Institute, must be quashed. Alternatively, to the extent the Court orders production of the requested documents and information, Dr. Donich and Summa request that the Court require Defendant to prepay the cost of retrieval and redaction. 9 Sandra Kurt, Summit County Clerk of Courts CV-2022-11-3785 OLDFIELD, JOY M 11/03/2023 16:09:53 PM MQUH Page 10 of 10 Respectfully submitted, /s/ David Best David Best (0014349) 4900 West Bath Road Akron, OH 44333 Phone: 330-714-8620 Fax: 330-666-5755 DMBLPA@gmail.com Counsel for Dane J. Donich, M.D. /s/ Nomiki Tsarnas Nomiki P. Tsarnas #0076134 22 E. McKinley Way, Suite A Poland, OH 44514 Phone: 330-729-1090 Fax: 330-869-9008 tsarnas@knrlegal.com Counsel for Plaintiff Anthony Riviotta CERTIFICATE OF SERVICE I hereby certify that a copy of the forgoing was served by the courts electronic filing system. /s/David Best David Best Attorney for Dane J. Donich, M.D. 10 Sandra Kurt, Summit County Clerk of Courts