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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
HDDA, LLC, CASE NO: 20CV7082
Plaintiff/Creditor, JUDGE CHRIS M. BROWN
Vv. MAGISTRATE CORDLE
Abhijit S. Vasani, et al.,
Defendants/Debtors.
DEFENDANTS ABHIJIT S. VASANI AND BHAVNA A. VASANI’S MEMORANDUM
CONTRA TO PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER
I. PRELIMINARY STATEMENT
The Court should deny Plaintiffs’ Motion for a Protective Order (the “Motion’).
The vast swath of documents that Plaintiff has asked the Court to protect from disclosure
to Defendants are labeled on its privilege log as “Confidential/Proprietary/Non-Responsive.”
Yet, a document’s confidentiality is not the same as an assertion of privilege. The normal
method of addressing confidential information is to request the Court adopt a general protective
order like the template offered on the website of the Southern District of Ohio.! With a general
protective order, Plaintiff can simply mark the document “Confidential” and then it will be
treated as such by Defendants and their counsel. In the event that Plaintiff has some significant
trade secret, the templates offered by the court even include one with a “Level-Two” designation
that includes “Attorneys’ Eye Only.”
Defendants’ counsel repeatedly informed Plaintiff's counsel about the availability of this
free resource and how asking for it would be customary and time saving. However, rather than
| bros:/Avww obsd uscouris gou/protactive-orders There is even a Word version available.
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take this simple step, it has chosen to deliver 25 bankers’ boxes of paper to chambers apparently
expecting the Court to analyze each and every one of them.
The remaining swath of withheld documents is due to “Attorney/Client Communication.”
Yet, no factual or legal basis is provided to Defendants about the nature of those communications
to know whether to object to it, or seek judicial review. A privilege log must contain at least
enough information to know the context of the communication withheld so that the other party
can contest the claim. For example, attorney-client privilege does not extend absolutely to in-
house counsel and there are dozens of so marked documents where in-house counsel is
communicating with other employees of the organization (versus outside counsel). Having some
context of those would enable Defendants to selectively address documents to bring to the
attention of the Court, versus expecting the Court to wade through 20,000 pages to figure out
what should be or should not be appropriately produced.
Further, Abhijit Vasani and Bhavna Vasani’s (collectively referred to as “the Vasanis”)
discovery requests are appropriate because they could lead to admissible evidence for the
Damages Hearing. Additionally, Plaintiffs have failed to comply with the Magistrate’s Order by
neglecting to provide any factual or legal basis for withholding the documents. Instead, Plaintiffs
have imposed an unreasonable burden on the Court by providing the Court with thousands of
documents to review in-camera. Furthermore, Plaintiffs have failed to meet their burden of
showing that privilege applies.
A. The Magistrate issues an Order compelling Plaintiffs regarding the
Discovery Requests
On March 24, 2023, the Vasanis, through counsel, filed a Motion to Compel. (See
Docket). Instead of Plaintiffs simply providing the withheld documents, Plaintiffs continued to
object by filing a Memorandum Contra. (/d.). In response on April 26, 2023, the Court issued an
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Order compelling Plaintiffs to provide “[a]ll responses to [Vasanis’] First Combined Set of
Discovery Requests” unless Plaintiffs (1) “file a motion for a protective order, identifying the
legal and factual bases for withholding the documents, and (2) delivering the responsive
documents to chambers for an in-camera inspection.” (Magistrate’s Order at pg. 3).
Il. LAW & ANALYSIS
Civ. R. 26(B) allows parties to obtain discovery regarding “any matter, not privileged,
which is relevant to the subject matter involved in the action, whether it relates to...other
tangible things and the identify and location of persons having knowledge of any discoverable
matter.” This provision grants parties a right to “liberal discovery of information.” Ward v.
Summa Health Sys., 128 Ohio St.3d 212, 214, 2009-Ohio-1998, 943 N.E.2d 514, 517, citing
Moskovitz v. Mt. Sinai Med. Cir., 69 Ohio St.3d 638, 661-62, 635 N.E.2d 331 (1994).
Here, the Court should allow the Vasanis to obtain the requested discovery that is not
privileged and is relevant to the Damages Hearing.
A. The Vasanis have showed how the Discovery Requests could lead to admissible
evidence for the Damages Hearing
Plaintiffs cite to Fifth Third Bank v. Jones-Williams, 10th Dist. Franklin No. 04AP-935,
2005-Ohio-4070 in an effort to bolster the Motion. But in Fifth Third, the court granted a motion
for a protective order because the mortgagers “fail[ed] to demonstrate how their discovery
requests could lead to the admissibility of evidence.” /d. at 4 15. Simply put, the Vasanis have
not failed to demonstrate how the Discovery Requests could lead to admissible evidence.
Here, the Discovery Requests present a distinct divergence from those presented in fifth
Third. The Vasanis have effectively demonstrated how the Discovery Requests have the
potential to result in the admission of evidence pertinent to the Damages Hearing. These requests
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have been carefully crafted to be precise and narrow in scope, aimed solely at acquiring
information necessary for the Damages Hearing.
The Vasanis are specifically requesting documents that will allow them to defend a
potential multi-million dollar judgment against them personally. Discovery will facilitate an
accurate determination of whether the Plaintiffs' claimed damages have been appropriately
calculated. Therefore, this Court should deny the Motion because the Discovery Requests could
lead to admissible evidence related to the Damages Hearing.
B. Plaintiffs fail to comply with the Magistrate’s Order.
Plaintiffs were required to “[identify] the legal and factual basis for withholding the
documents [it claims should be protected from disclosure].” (Magistrate’s Order pg. 3).
Further, Civil Rule 26(B)(8)(A) states, “When information subject to discovery is withheld ona
claim that it is privileged or subject to protection as trial preparation materials, the claim shall be
made expressly and shall be supported by a description of the nature of the documents,
communications, or things not produced that is sufficient to enable the demanding party to
contest the claim.” Civil Rule 26(B)(8)(A). (Emphasis added.)
1 Plaintiffs fail to identify a factual basis for withholding the documents.
Plaintiffs Motion fails to offer any factual grounds to support it. It does not even appear
to reference a single document in the 12,248 documents it identifies in its privilege log. Plaintiff
does not even try to factually differentiate groups of like documents so that the Court (or
Defendants) can determine whether any of the factual basis of its privilege assertions are proper.
Instead of identifying any factual basis of any of the 12,248 documents it claims are
privileged, it leaves everyone guessing. The first document that it marked
“Confidential/Proprietary/Non-Responsive” is at Excel Line 8 (APF-N1D-TEMP00000191) and
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is simply titled “Your daily briefing.” That is not a factual assertion as to why this document
should be withheld from Defendants. Nor is there any mention of this document in its motion,
leaving it up to Defendants to guess — or for the Court to do its factual analysis for it. These
three words certainly do not provide Defendants with “a description of the nature of the
documents. ..that is sufficient to enable [defendants] to contest the claim.” Civ. R. 26(B)(8)(A).
There are a number of these documents with the same label, so it is impossible to
determine whether Plaintiff has properly withheld them. The burden should not be on the Court
to establish grounds for Plaintiffs’ protective order — the burden it on Plaintiffs’ to do that.
Plaintiffs simply have not provided any factual basis for its privilege assertions. Given
this, this Court should reject the Motion because Plaintiffs failed to comply with the Magistrate’s
Order and Civil Rule 26.
ii. Plaintiffs fail to identify a legal basis for withholding the documents
Plaintiff argues swaths of documents should not be produced to Defendants due to them
being “high-level proprietary and confidential.” While that is in itself dubious considering a
simple protective order could have been sought by Plaintiffs — as is their burden under Civil Rule
26(c) — it belies the fact that it has not applied such legal analysis to any particular document.
Plaintiffs seek to protect 12,248 documents from Defendants — some of which are surely
protected from disclosure — but it does help Defendants or the Court identify which of those
documents need protecting.
Where is any analysis of the legal privilege exception Plaintiff wants to apply to “Your
daily briefing” that makes it protected from discovery? Is it due to confidentiality? Or because
it is proprietary? Or is it simply non-responsive*? Does it expect the Court to figure that out on
? Tt is unclear why Plaintiffs included non-responsiveness in its log, which it also did with the first document
production.
5
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its own, without giving Defendants the opportunity afforded to them under Civil Rule 26(B)(8)
to challenge such designation?
Plaintiffs’ assertion of privilege regarding attorney-client confidentiality is likewise
problematic. For example, Excel line 4 (APF-N1D-TEMP00000075) is marked as Withheld for
Attorney/Client Communication. However, the emails in this communication are internal and
from an Access Point Financial domain. The title is “FW: Access Point — Tehrah Bill of Sale.”
This document may be protected from disclosure if it is seeking legal advice, but it may not be if
it is a communication in the normal scope of the business’s operations. See, The Attorney-Client
Privilege as Applied to Corporate Clients. Marsh, Elinore, Akron Law Review, July, 2015.° Just
because a lawyer is involved with a communication does not mean it automatically becomes
privileged. See, Ohio R.C. 2317.02 (Listing multiple exceptions to the attorney-client privilege).
Plaintiff identifies a handful of privileges in its motion, but fails to provide Defendants or
the Court any idea of the legal analysis necessary to address the privilege as it pertains to any of
its 25 bankers’ boxes of documents currently sitting in chambers
C. Plaintiffs have failed to show privilege applies
Any party objecting to a discovery request or otherwise not responding to it has “the
burden to establish that the requested information would not reasonably lead to the discovery of
admissible evidence.” Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d
763, J 44 (10th Dist.), citing Patterson v. Zdanski, 7th Dist. No. 03 BE 1, 2003-Ohio-5464, | 19,
citing Rose Chevrolet, Inc., 82 Ohio App.3d at 523. The Ohio Supreme Court determined that the
“rule with respect to privileges applies at all stages of all actions, cases, and proceedings
conducted under these rules. The burden of showing that the privilege applies rests on the party
5 https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1926&context=akronlawreview
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asserting the privilege. State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, J
234.
Here, the burden to demonstrate that privilege is applicable falls upon the Plaintiffs,
given they are the ones asserting the privilege. However, the Plaintiffs have failed to substantiate
that the privilege applies, as they have offered no factual basis to support their claim of privilege.
Furthermore, Plaintiffs have erroneously contended that the Court should issue a
protective order based on their belief that the Vasanis “have not—and cannot—establish how
discovery of such documents would lead to any admissible evidence.” (the Motion at pg. 11).
However, this contention is fundamentally flawed. The duty to establish that the privilege applies
lies squarely with the Plaintiffs, a burden they have not satisfactorily fulfilled. Given these
circumstances, the Court should deny the Motion.
D. Plaintiffs have failed to meet their burden under Civil Rule 26(C).
The Court ordered Plaintiffs to seek a protective order if it sought to shield documents
from discovery to Defendants. The burden of proving such an order rests on Plaintiffs. Civil
Rule 26(C) expressly provides that a motion must be made by the person from whom discovery
is being sought and for good cause shown. Civil Rule 26(B)(8)(a) requires that Plaintiff assert
such a privilege with “sufficient [detail] to enable [defendants] to contest the claim.” Civil Rule
26(B)(8)(a). It is clear from Plaintiffs motion that it has failed in its burden to establish that the
documents it seeks to protect from disclosure are properly withheld by the Court
Til. RECITATION OF RELEVANT FACTS
A. The Vasanis served Plaintiffs with Discovery Requests
On August 29, 2022, the Vasanis, through counsel, sent Plaintiffs the First Combined Set
of Requests for Admissions, Interrogatories, and Requests for the Production of Documents (the
“Discovery Requests”). (Exhibit A of Vasanis’ Motion to Compel). These requests were
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narrowly tailored to obtain information needed to prepare for the damages hearing. /d. More
specifically, the Discovery Requests sought information and documents evidencing Plaintiffs’
interactions with third parties as it relates to the auction and sale of the underlying property at
issue, and the discrepancies in the damages purportedly owed to Plaintiffs. Jd. The Vasanis
requested Plaintiffs respond to the Discovery Requests on or before the 29th day after service,
making Plaintiffs’ response due on September 27, 2022. /d.
B. Plaintiffs request several extensions to provide Discovery Responses
Due to a flurry of motions filed by Plaintiffs shortly after the Discovery Requests were
served attempting to halt the Vasanis’ efforts, including an Expedited Motion for Continuance, a
Motion for Protective Order and a Motion in Limine to Exclude Argument or Evidence of
Collateral Disposition, the Court extended Plaintiffs’ deadline to respond to the Vasanis’
Discovery Requests to October 31, 2022. (Exhibit B of Vasanis’ Motion to Compel). On October
27, 2022, Plaintiffs filed another motion, requesting another extension. (Exhibit C of Vasanis’
Motion to Compel). Plaintiffs’ counsel followed that motion up with an email to the Vasanis’
counsel on October 28, 2022, requesting they agree to the additional extension, to November 22,
2022. (Exhibit D of Vasanis’ Motion to Compel). The Vasanis’ counsel agreed (Exhibit E of
Vasanis’ Motion to Compel), and the Court issued another Order indicating the same. (Exhibit F
of Vasanis’ Motion to Compel).
On November 21, 2022, a conference call was held between counsel wherein Plaintiffs
again requested an extension to respond to discovery. As a professional courtesy, the Vasanis’
counsel agreed to another extension until December 15, 2022. (Exhibit G of Vasanis’ Motion to
Compel). A notice was soon later filed with the Court stating the continued deadline. (Exhibit H
of Vasanis’ Motion to Compel).
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Meanwhile, during a phone conference with the undersigned on or about December 9,
2022, and as Plaintiffs were actively pursuing the domestication and collection of foreign
judgments against the Vasanis, Plaintiffs’ counsel requested yet another extension to respond to
discovery in this matter. (See Exs. I-J of Vasanis’ Motion to Compel). However, due to the
procedural posture of the case, and the upcoming Damages Hearing, undersigned counsel
declined to agree to again extend the deadline to respond. /d. After Magistrate Cordle inquired as
to potential dates for the Damages Hearing, and the additional delay in discovery was revealed to
the Court, Plaintiffs finally produced some limited answers and documents in response to the
Discovery Requests on December 15, 2022. (Exhibit K of Vasanis’ Motion to Compel).
On December 28, 2022, undersigned followed up with Plaintiffs’ counsel as to when to
expect additional materials. (Exhibit L of Vasanis’ Motion to Compel). Plaintiffs’ counsel
responded vaguely that he anticipated “a status report and continued production of materials
from our clients after the New Year.” /d. It was not until January 17, 2023, that Plaintiffs
supplemented their discovery responses with a few additional documents. (Exhibit M of Vasanis’
Motion to Compel)
C. Plaintiffs provided deficient Discovery Responses
On or about February 2, 2023, the Vasanis, through counsel, sent a letter to Plaintiffs
identifying deficiencies with the December 2022 and January 2023 discovery responses and
limited production of documents. (Exhibit N of Vasanis’ Motion to Compel). The February 2,
2023, letter listed the dozens of requests that were answered and/or objected to improperly
and/or incompletely, asked for a Privilege Log, asked for Plaintiffs’ status of retrieving and
producing additional documents, and asked for Plaintiffs’ response by February 10, 2023. /d.
Plaintiffs’ counsel responded on February 10, 2023, but only by producing some additional
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documents (most of which were redacted), no privilege log, and stating vaguely again that more
documents will eventually be produced on a “rolling basis.” (Exhibit O of Vasanis’ Motion to
Compel).
On or about February 28, 2023, the Vasanis, through counsel, sent another deficiency
letter to Plaintiffs in an attempt to remedy the discovery issues and also indicating undersigned
counsel could be reached by email or phone at any time to resolve these issues. (Exhibit P of
Vasanis’ Motion to Compel). On March 2, 2023, Plaintiffs’ counsel responded to the letter,
producing no additional documents, no privilege log, and again refusing to provide a certain date
on which production of the requested materials would occur. (Exhibit Q of Vasanis’ Motion to
Compel). Plaintiffs even unilaterally gave themselves until March 31, 2023 to respond further.
Id. At this point, it became evident that Plaintiffs’ motive was not solely to gather responsive
materials for the upcoming hearing, but rather to delay responding to the Discovery Requests
entirely.
Iv. CONCLUSION
Based on the foregoing, the Vasanis request this Court to deny Plaintiffs’ Motion for a
Protective Order.
Respectfully Submitted,
DOUCET CO., L.P.A.
ds/ Troy J. Doucet
Troy J. Doucet (0086350)
655 Metro Place South, Suite 600
Dublin, OH 43017
PH: (614) 221-9800
Fax: (818) 638-5548
troy@doucet.law
Attorney for Defendants/Judgment Debtors Abhijit
S. Vasani and Bhavna A. Vasani
10
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served upon the
following parties via electronic mail (email) on this 31‘ day of May, 2023, pursuant to Civ.R.
SBY2)H
Sean A. Gordon
Mary Csarny
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
PH: (216) 566-5500
Fax: (216) 566-5800
sean.gordon@thompsonhine.com
mary.csarny@thompsonhine.com
Attorneys for Plaintiff Judgment Debtor HDDA, LLC
ds/ Troy J. Doucet
Troy J. Doucet (0086350)
ll
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO HDDA, LLC, CASE NO: 20CV7082 Plaintiff/Creditor, JUDGE CHRIS M. BROWN Vv. MAGISTRATE CORDLE Abhijit S. Vasani, et al., Defendants/Debtors. DEFENDANTS ABHIJIT S. VASANI AND BHAVNA A. VASANI’S MEMORANDUM CONTRA TO PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER I. PRELIMINARY STATEMENT The Court should deny Plaintiffs’ Motion for a Protective Order (the “Motion’). The vast swath of documents that Plaintiff has asked the Court to protect from disclosure to Defendants are labeled on its privilege log as “Confidential/Proprietary/Non-Responsive.” Yet, a document’s confidentiality is not the same as an assertion of privilege. The normal method of addressing confidential information is to request the Court adopt a general protective order like the template offered on the website of the Southern District of Ohio.! With a general protective order, Plaintiff can simply mark the document “Confidential” and then it will be treated as such by Defendants and their counsel. In the event that Plaintiff has some significant trade secret, the templates offered by the court even include one with a “Level-Two” designation that includes “Attorneys’ Eye Only.” Defendants’ counsel repeatedly informed Plaintiff's counsel about the availability of this free resource and how asking for it would be customary and time saving. However, rather than | bros:/Avww obsd uscouris gou/protactive-orders There is even a Word version available. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 take this simple step, it has chosen to deliver 25 bankers’ boxes of paper to chambers apparently expecting the Court to analyze each and every one of them. The remaining swath of withheld documents is due to “Attorney/Client Communication.” Yet, no factual or legal basis is provided to Defendants about the nature of those communications to know whether to object to it, or seek judicial review. A privilege log must contain at least enough information to know the context of the communication withheld so that the other party can contest the claim. For example, attorney-client privilege does not extend absolutely to in- house counsel and there are dozens of so marked documents where in-house counsel is communicating with other employees of the organization (versus outside counsel). Having some context of those would enable Defendants to selectively address documents to bring to the attention of the Court, versus expecting the Court to wade through 20,000 pages to figure out what should be or should not be appropriately produced. Further, Abhijit Vasani and Bhavna Vasani’s (collectively referred to as “the Vasanis”) discovery requests are appropriate because they could lead to admissible evidence for the Damages Hearing. Additionally, Plaintiffs have failed to comply with the Magistrate’s Order by neglecting to provide any factual or legal basis for withholding the documents. Instead, Plaintiffs have imposed an unreasonable burden on the Court by providing the Court with thousands of documents to review in-camera. Furthermore, Plaintiffs have failed to meet their burden of showing that privilege applies. A. The Magistrate issues an Order compelling Plaintiffs regarding the Discovery Requests On March 24, 2023, the Vasanis, through counsel, filed a Motion to Compel. (See Docket). Instead of Plaintiffs simply providing the withheld documents, Plaintiffs continued to object by filing a Memorandum Contra. (/d.). In response on April 26, 2023, the Court issued an Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 Order compelling Plaintiffs to provide “[a]ll responses to [Vasanis’] First Combined Set of Discovery Requests” unless Plaintiffs (1) “file a motion for a protective order, identifying the legal and factual bases for withholding the documents, and (2) delivering the responsive documents to chambers for an in-camera inspection.” (Magistrate’s Order at pg. 3). Il. LAW & ANALYSIS Civ. R. 26(B) allows parties to obtain discovery regarding “any matter, not privileged, which is relevant to the subject matter involved in the action, whether it relates to...other tangible things and the identify and location of persons having knowledge of any discoverable matter.” This provision grants parties a right to “liberal discovery of information.” Ward v. Summa Health Sys., 128 Ohio St.3d 212, 214, 2009-Ohio-1998, 943 N.E.2d 514, 517, citing Moskovitz v. Mt. Sinai Med. Cir., 69 Ohio St.3d 638, 661-62, 635 N.E.2d 331 (1994). Here, the Court should allow the Vasanis to obtain the requested discovery that is not privileged and is relevant to the Damages Hearing. A. The Vasanis have showed how the Discovery Requests could lead to admissible evidence for the Damages Hearing Plaintiffs cite to Fifth Third Bank v. Jones-Williams, 10th Dist. Franklin No. 04AP-935, 2005-Ohio-4070 in an effort to bolster the Motion. But in Fifth Third, the court granted a motion for a protective order because the mortgagers “fail[ed] to demonstrate how their discovery requests could lead to the admissibility of evidence.” /d. at 4 15. Simply put, the Vasanis have not failed to demonstrate how the Discovery Requests could lead to admissible evidence. Here, the Discovery Requests present a distinct divergence from those presented in fifth Third. The Vasanis have effectively demonstrated how the Discovery Requests have the potential to result in the admission of evidence pertinent to the Damages Hearing. These requests Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 have been carefully crafted to be precise and narrow in scope, aimed solely at acquiring information necessary for the Damages Hearing. The Vasanis are specifically requesting documents that will allow them to defend a potential multi-million dollar judgment against them personally. Discovery will facilitate an accurate determination of whether the Plaintiffs' claimed damages have been appropriately calculated. Therefore, this Court should deny the Motion because the Discovery Requests could lead to admissible evidence related to the Damages Hearing. B. Plaintiffs fail to comply with the Magistrate’s Order. Plaintiffs were required to “[identify] the legal and factual basis for withholding the documents [it claims should be protected from disclosure].” (Magistrate’s Order pg. 3). Further, Civil Rule 26(B)(8)(A) states, “When information subject to discovery is withheld ona claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Civil Rule 26(B)(8)(A). (Emphasis added.) 1 Plaintiffs fail to identify a factual basis for withholding the documents. Plaintiffs Motion fails to offer any factual grounds to support it. It does not even appear to reference a single document in the 12,248 documents it identifies in its privilege log. Plaintiff does not even try to factually differentiate groups of like documents so that the Court (or Defendants) can determine whether any of the factual basis of its privilege assertions are proper. Instead of identifying any factual basis of any of the 12,248 documents it claims are privileged, it leaves everyone guessing. The first document that it marked “Confidential/Proprietary/Non-Responsive” is at Excel Line 8 (APF-N1D-TEMP00000191) and Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 is simply titled “Your daily briefing.” That is not a factual assertion as to why this document should be withheld from Defendants. Nor is there any mention of this document in its motion, leaving it up to Defendants to guess — or for the Court to do its factual analysis for it. These three words certainly do not provide Defendants with “a description of the nature of the documents. ..that is sufficient to enable [defendants] to contest the claim.” Civ. R. 26(B)(8)(A). There are a number of these documents with the same label, so it is impossible to determine whether Plaintiff has properly withheld them. The burden should not be on the Court to establish grounds for Plaintiffs’ protective order — the burden it on Plaintiffs’ to do that. Plaintiffs simply have not provided any factual basis for its privilege assertions. Given this, this Court should reject the Motion because Plaintiffs failed to comply with the Magistrate’s Order and Civil Rule 26. ii. Plaintiffs fail to identify a legal basis for withholding the documents Plaintiff argues swaths of documents should not be produced to Defendants due to them being “high-level proprietary and confidential.” While that is in itself dubious considering a simple protective order could have been sought by Plaintiffs — as is their burden under Civil Rule 26(c) — it belies the fact that it has not applied such legal analysis to any particular document. Plaintiffs seek to protect 12,248 documents from Defendants — some of which are surely protected from disclosure — but it does help Defendants or the Court identify which of those documents need protecting. Where is any analysis of the legal privilege exception Plaintiff wants to apply to “Your daily briefing” that makes it protected from discovery? Is it due to confidentiality? Or because it is proprietary? Or is it simply non-responsive*? Does it expect the Court to figure that out on ? Tt is unclear why Plaintiffs included non-responsiveness in its log, which it also did with the first document production. 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 its own, without giving Defendants the opportunity afforded to them under Civil Rule 26(B)(8) to challenge such designation? Plaintiffs’ assertion of privilege regarding attorney-client confidentiality is likewise problematic. For example, Excel line 4 (APF-N1D-TEMP00000075) is marked as Withheld for Attorney/Client Communication. However, the emails in this communication are internal and from an Access Point Financial domain. The title is “FW: Access Point — Tehrah Bill of Sale.” This document may be protected from disclosure if it is seeking legal advice, but it may not be if it is a communication in the normal scope of the business’s operations. See, The Attorney-Client Privilege as Applied to Corporate Clients. Marsh, Elinore, Akron Law Review, July, 2015.° Just because a lawyer is involved with a communication does not mean it automatically becomes privileged. See, Ohio R.C. 2317.02 (Listing multiple exceptions to the attorney-client privilege). Plaintiff identifies a handful of privileges in its motion, but fails to provide Defendants or the Court any idea of the legal analysis necessary to address the privilege as it pertains to any of its 25 bankers’ boxes of documents currently sitting in chambers C. Plaintiffs have failed to show privilege applies Any party objecting to a discovery request or otherwise not responding to it has “the burden to establish that the requested information would not reasonably lead to the discovery of admissible evidence.” Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763, J 44 (10th Dist.), citing Patterson v. Zdanski, 7th Dist. No. 03 BE 1, 2003-Ohio-5464, | 19, citing Rose Chevrolet, Inc., 82 Ohio App.3d at 523. The Ohio Supreme Court determined that the “rule with respect to privileges applies at all stages of all actions, cases, and proceedings conducted under these rules. The burden of showing that the privilege applies rests on the party 5 https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1926&context=akronlawreview Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 asserting the privilege. State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, J 234. Here, the burden to demonstrate that privilege is applicable falls upon the Plaintiffs, given they are the ones asserting the privilege. However, the Plaintiffs have failed to substantiate that the privilege applies, as they have offered no factual basis to support their claim of privilege. Furthermore, Plaintiffs have erroneously contended that the Court should issue a protective order based on their belief that the Vasanis “have not—and cannot—establish how discovery of such documents would lead to any admissible evidence.” (the Motion at pg. 11). However, this contention is fundamentally flawed. The duty to establish that the privilege applies lies squarely with the Plaintiffs, a burden they have not satisfactorily fulfilled. Given these circumstances, the Court should deny the Motion. D. Plaintiffs have failed to meet their burden under Civil Rule 26(C). The Court ordered Plaintiffs to seek a protective order if it sought to shield documents from discovery to Defendants. The burden of proving such an order rests on Plaintiffs. Civil Rule 26(C) expressly provides that a motion must be made by the person from whom discovery is being sought and for good cause shown. Civil Rule 26(B)(8)(a) requires that Plaintiff assert such a privilege with “sufficient [detail] to enable [defendants] to contest the claim.” Civil Rule 26(B)(8)(a). It is clear from Plaintiffs motion that it has failed in its burden to establish that the documents it seeks to protect from disclosure are properly withheld by the Court Til. RECITATION OF RELEVANT FACTS A. The Vasanis served Plaintiffs with Discovery Requests On August 29, 2022, the Vasanis, through counsel, sent Plaintiffs the First Combined Set of Requests for Admissions, Interrogatories, and Requests for the Production of Documents (the “Discovery Requests”). (Exhibit A of Vasanis’ Motion to Compel). These requests were Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 narrowly tailored to obtain information needed to prepare for the damages hearing. /d. More specifically, the Discovery Requests sought information and documents evidencing Plaintiffs’ interactions with third parties as it relates to the auction and sale of the underlying property at issue, and the discrepancies in the damages purportedly owed to Plaintiffs. Jd. The Vasanis requested Plaintiffs respond to the Discovery Requests on or before the 29th day after service, making Plaintiffs’ response due on September 27, 2022. /d. B. Plaintiffs request several extensions to provide Discovery Responses Due to a flurry of motions filed by Plaintiffs shortly after the Discovery Requests were served attempting to halt the Vasanis’ efforts, including an Expedited Motion for Continuance, a Motion for Protective Order and a Motion in Limine to Exclude Argument or Evidence of Collateral Disposition, the Court extended Plaintiffs’ deadline to respond to the Vasanis’ Discovery Requests to October 31, 2022. (Exhibit B of Vasanis’ Motion to Compel). On October 27, 2022, Plaintiffs filed another motion, requesting another extension. (Exhibit C of Vasanis’ Motion to Compel). Plaintiffs’ counsel followed that motion up with an email to the Vasanis’ counsel on October 28, 2022, requesting they agree to the additional extension, to November 22, 2022. (Exhibit D of Vasanis’ Motion to Compel). The Vasanis’ counsel agreed (Exhibit E of Vasanis’ Motion to Compel), and the Court issued another Order indicating the same. (Exhibit F of Vasanis’ Motion to Compel). On November 21, 2022, a conference call was held between counsel wherein Plaintiffs again requested an extension to respond to discovery. As a professional courtesy, the Vasanis’ counsel agreed to another extension until December 15, 2022. (Exhibit G of Vasanis’ Motion to Compel). A notice was soon later filed with the Court stating the continued deadline. (Exhibit H of Vasanis’ Motion to Compel). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W7 Meanwhile, during a phone conference with the undersigned on or about December 9, 2022, and as Plaintiffs were actively pursuing the domestication and collection of foreign judgments against the Vasanis, Plaintiffs’ counsel requested yet another extension to respond to discovery in this matter. (See Exs. I-J of Vasanis’ Motion to Compel). However, due to the procedural posture of the case, and the upcoming Damages Hearing, undersigned counsel declined to agree to again extend the deadline to respond. /d. After Magistrate Cordle inquired as to potential dates for the Damages Hearing, and the additional delay in discovery was revealed to the Court, Plaintiffs finally produced some limited answers and documents in response to the Discovery Requests on December 15, 2022. (Exhibit K of Vasanis’ Motion to Compel). On December 28, 2022, undersigned followed up with Plaintiffs’ counsel as to when to expect additional materials. (Exhibit L of Vasanis’ Motion to Compel). Plaintiffs’ counsel responded vaguely that he anticipated “a status report and continued production of materials from our clients after the New Year.” /d. It was not until January 17, 2023, that Plaintiffs supplemented their discovery responses with a few additional documents. (Exhibit M of Vasanis’ Motion to Compel) C. Plaintiffs provided deficient Discovery Responses On or about February 2, 2023, the Vasanis, through counsel, sent a letter to Plaintiffs identifying deficiencies with the December 2022 and January 2023 discovery responses and limited production of documents. (Exhibit N of Vasanis’ Motion to Compel). The February 2, 2023, letter listed the dozens of requests that were answered and/or objected to improperly and/or incompletely, asked for a Privilege Log, asked for Plaintiffs’ status of retrieving and producing additional documents, and asked for Plaintiffs’ response by February 10, 2023. /d. Plaintiffs’ counsel responded on February 10, 2023, but only by producing some additional Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W8 documents (most of which were redacted), no privilege log, and stating vaguely again that more documents will eventually be produced on a “rolling basis.” (Exhibit O of Vasanis’ Motion to Compel). On or about February 28, 2023, the Vasanis, through counsel, sent another deficiency letter to Plaintiffs in an attempt to remedy the discovery issues and also indicating undersigned counsel could be reached by email or phone at any time to resolve these issues. (Exhibit P of Vasanis’ Motion to Compel). On March 2, 2023, Plaintiffs’ counsel responded to the letter, producing no additional documents, no privilege log, and again refusing to provide a certain date on which production of the requested materials would occur. (Exhibit Q of Vasanis’ Motion to Compel). Plaintiffs even unilaterally gave themselves until March 31, 2023 to respond further. Id. At this point, it became evident that Plaintiffs’ motive was not solely to gather responsive materials for the upcoming hearing, but rather to delay responding to the Discovery Requests entirely. Iv. CONCLUSION Based on the foregoing, the Vasanis request this Court to deny Plaintiffs’ Motion for a Protective Order. Respectfully Submitted, DOUCET CO., L.P.A. ds/ Troy J. Doucet Troy J. Doucet (0086350) 655 Metro Place South, Suite 600 Dublin, OH 43017 PH: (614) 221-9800 Fax: (818) 638-5548 troy@doucet.law Attorney for Defendants/Judgment Debtors Abhijit S. Vasani and Bhavna A. Vasani 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 31 5:13 PM-20CV007082 0G408 - W8 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served upon the following parties via electronic mail (email) on this 31‘ day of May, 2023, pursuant to Civ.R. SBY2)H Sean A. Gordon Mary Csarny THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 PH: (216) 566-5500 Fax: (216) 566-5800 sean.gordon@thompsonhine.com mary.csarny@thompsonhine.com Attorneys for Plaintiff Judgment Debtor HDDA, LLC ds/ Troy J. Doucet Troy J. Doucet (0086350) ll