Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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IN THE COURT OF COMMON PLEAS
OF FRANKLIN COUNTY, OHIO
APF —- CRE I, LLC & CASE NO. 20CV007082
APF - CPX I, LLC,
MAGISTRATE JENNIFER CORDLE
Plaintiffs,
Vv
TEHRAH HOSPITALITY, LLC,
ABHIJIT S. VASANI &
BHAVNA A. VASANT,
Defendants.
PLAINTIFFS’ MEMORANDUM CONTRA TO MOTION OF DEFENDANTS TO
COMPEL DISCOVERY AND IMPOSE SANCTIONS
Plaintiffs APF — CRE I, LLC (“APF — CRE”) and APF — CPX I, LLC (“APF — CPX”, and
together with APF — CRE, collectively, “Plaintiffs”), successors in interest to Access Point
Financial, LLC, f/k/a Access Point Financial, Inc. (“Access Point”), by and through undersigned
counsel, file this Memorandum Contra (the “Response”) to the motion of Defendants Abhijit S.
Vasani and Bhavna A. Vasani (collectively, “Defendants”) to compel discovery and impose
sanctions (the “Motion to Compel”) in connection with Plaintiffs’ responses to Defendants’ First
Combined Set of Requests for Admissions, Interrogatories, and Requests for the Production of
Documents to Plaintiff (the “Discovery Requests” ).
As set forth below, Defendants’ Motion to Compel and the requests contained therein are
improper and untimely, as Plaintiffs have never refused to produce responsive and nonprivileged
materials in response to the Discovery Requests. In fact, prior to the filing of this Response, and
subject to finalization of a privilege log, Plaintiffs have completed their document review,
rendering
the Motion to Compel moot. In addition, the timing and manner
of Plaintiffs’ production
of documents in response to the Discovery Requests have been entirely reasonable given the
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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unnecessarily broad document requests propounded on Plaintiffs by the Defendants. Finally,
Defendants’ request for various sanctions against Plaintiffs in the Motion to Compel are entirely
unwarranted, inappropriate and baseless under the circumstances of this case, and considering the
reasonable and good faith conduct of the Plaintiffs at all stages in this proceeding. In support,
Plaintiffs respectfully state as follows
I. Defendants’ Motion is Now Moot Because Plaintiffs Have Produced Responsive and
Nonprivileged Documents.
As athreshold matter, Plaintiffs have complied with Defendants’ Discovery Requests since
the filing of the Motion to Compel, subject to finalizing a comprehensive privilege log for the
entirety of the document production Specifically, on April 6, 2023, Plaintiffs produced an
additional 1,804 responsive and nonprivileged documents, a total of 7,410 pages of materials,
consistent with Plaintiffs’ representations in their Motion to (I) Continue Damages Hearing and
(Il) Establish Case Management Deadlines, Including Deadline to Supplement Discovery
Responses (the “Motion to Continue Damages Hearing”) filed on March 2, 2023 In total since
receipt of the Discovery Requests, Plaintiffs have produced over 2,700 documents and almost
12,500 pages of materials in response to Defendants’ extremely broad Discovery Requests.
Plaintiffs are in the process of finalizing a comprehensive privilege log, and will further
supplement their discovery responses consistent with the Court’s Damages Hearing Contimumce
and Amended Scheduling Order (the “Scheduling Order”) as may be necessary. Accordingly, the
Motion to Compel is now moot and should be denied by the Court
i, The Timing and Manner of Plaintiffs’ Production Is Reasonable Given Defendants’
Broad Discovery Requests
Despite suggestions to the contrary in the Motion to Compe, the timing and manner of
Plaintiffs’ production of responsive and nonprivileged documents is entirely reasonable given the
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unnecessarily broad Discovery Requests that were issued by Defendants against Plaintiffs. As
Plaintiffs have previously stated in prior briefing before the Court, the Court’s Entry on July 22,
2022 expressly limited the scope of Defendants’ discovery to discovery that is “necessary to
prepare for the damages hearing,” given questions of fact surrounding “the unknown
circumstances of the auction” for the hotel property. See Entry at p. 14 and 17 (emphasis added).
However, Defendants have apparently taken this statement by the Court to mean that they may
effectively reopen and redo discovery in this case, and have sought a broad array of documents
and correspondence from Plaintiffs (as well as overa dozen third parties) seekingin formation from
the entirety of the lending relationship between Plaintiffs and Defendants. By way of example,
the Discovery Requests by Defendants seek all Documents referencing the account established
between the Parties in connection with the Loan Documents, as well as all Documents and ESI
between the parties without any sort of qualifying language.
While Plaintiffs continue to assert that Defendants’ attempts to conduct such expansive
discovery upon Plaintiffs is wholly wmecessary for the Damages Hearing, they have nevertheless
acted in good faith to respond to the Discovery Requests in their entirety, producing over 2,700
documents and almost 12,500 pages of materials. These figures pale in comparison to the total
amount of documents and pages that Plaintiffs and their counsel actually had to review in order to
comply with Defendants’ overly broad Discovery Requests Accordingly, any contention by
Defendants that the timing and manner of production in this litigation was unreasonable is wholly
without merit given the expansive categories of materials that were requested
Defendants severely and unfairly mischaracterize Plaintiff's’ conduct regarding discovery
in this matter. Most of the Motion to Compel appears to be a play-by-play of the parties’
discussions about Plaintiffs’ production of responsive and nonprivileged documents, replete with
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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baseless insinuations that Plaintiffs have not acted in good faith during the discovery process, and
numerous mischaracterizations of statements madeby Plaintiffs’ counsel.! However, even casual
readings of the various communications attached to the Motion to Compel, and Plaintiffs’ filings
with the Court, show that Plaintiffs consistently and proactively communicated with opposing
counsel to convey where Plaintiffs and their counsel were in the document review process.
Specifically:
° In response to an email from Defendants’ counsel on December 28, 2022—a mere 13 days
after Plaintiffs’ first production and in the middle of the Christmas and New Year
holidays: Plaintiffs’ counsel informed Defendants that their client contacts were not
entirely available due to the holidays and other travel commitments,that Plainti counsel
would also be out of the office for multiple days due the New Year holiday, and that a
status report would be provided after the New Year. See Defendants hibit L.
4 4
Tn response to a follow-up email from Defendants’ counsel on January 3,2 023, Plaintiffs’
counsel provided the status report that was promised in the first email referenced above
and indicated that Plaintiffs expected to continueits rolling production of materials on or
around January 17, 2023. Notably, this was the same date previously requested by
Plaintiffs’ counsel for an extension of time to produce materi 1 vhich Defendants’
counsel refused to provide despite the impending holidays. Se:
Plaintiffs timely served responses to two discovery deficiency letters sent by Defendants’
counsel on February 10 and March 2, 2023, in which Plaintiffs, among other things, ()
provided a percentage estimate of how many more materials needed to be vetted at that
time, (ii) estimated when Plaintiffs anticipatedthe next production would occur, and (ii)
indicated that they remained amenable to reasonable adjournments of the Damages Hearing
if Defendants needed additional time to review Plaintiffs’ expansive production. See
Defendants’ Exhibits O and O
in addition to the above update, on March 3, 2023, Plaintiffs also filed its Motion to
Continue Damages Hearing, in which Plaintiffs, among other things, informed both
Defendants and the Court that Plaintiffs estimated that their document production would
be completed within the next month In line with what was estimated, the document
' Perhaps nothing highlights Defendants’ unreasonable and illogical position, and mischaracterization of the parties’
correspondence, more than the following consecutive statements in the Motion to Compe: “On March 2, 2023,
Plaintiffs’ counsel responded to the [second discovery deficiency] letter... refusing to provide a date certain on which
production of therequested materials would occur. Plaintiffs even unilaterally gave themselves until March 31, 2023
to respond further.” A review of Plaintiffs’ response shows that Plaintiffs expressly provided an estimate of March
31,2023 for completion of production, in response to Defendants’ requestfora date certain by which production was
expectedatthe time. Defendants cannothave it both way s—stating, on the one hand, that Plaintiffs refused to provide
an estimated date for completion of production (which actually was provided as requested), and then, on the other
hand, simultaneously arguing without basis that Plaintiffs “unilaterally ga ve themselves” a deadline.
4
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production was completed on April 6, 2023, subject only to finalization of Plaintiffs
privilege fog.
From a review of these various communications between the parties, and the Plaintiffs’
filings of record, itis abundantly clear that Plaintiffs and their counsel have remained upfront with
both Defendants and the Court about the progress of their document production. Plaintiffs and
their counsel have atall times acted transparently and in good faith, particularly considering the
overly broad scope of what was requested by Defendants, the amount of materials that required
review, and the current posture of the matter. At no point during discovery for this matter have
Plaintiffs refused to cooperate with Defendants, refused to provide responsive and non-privileged
documents, or failed to provide a status report to Defendants and their counsel when asked to do
so. In fact, Plaintiffs proactively and consistently sought to work with Defendants’ counsel in
good faith with regard to discovery, scheduling, and timing in this action to avoid prejudice to
either side,
Finally, Plaintiffs have remained and continue to remain amenable to reasonable
accommodations and modifications to the discovery and case management deadlines
memorialized in the Scheduling Order as may be necessary. Thus, any suggestion by Defendants
that the timing and manner of production has been unreasonable is meritless and the Motion to
Compel should be denied.
Tih. Discovery Sanctions Are Unwarranted, Inappropriate and Baseless Under the
Circumstances,
Finally, Defendants’ request for various sanctions against Plaintiffs in the Motion to
Compel are entirely unwarranted, inappropriate and baseless under the circumstances of this case.
“itis exclusively within the discretion of the trial court to determine an appropriate sanction fora
discovery infraction.” McKowen v, United Church Homes, inc., 2d Dist. Greene No. 2005 CA 144,
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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2006-Ohio-6607, {| 10, citing Russo vy. Goodyear Tire & Rubber Co., 36 Ohio App.3d 175, 178,
521 N.E.2d 1116 (9th Dist. 1987). When considering what sanction, if any, to impose for a party’s
failure to comply with discovery, “‘the trial court must consider the posture of the case and what
efforts, if any, preceded the noncompliance
and then balance the severity of the violation against
the degree of possible sanctions, selecting that sanction which is most appropriate.’” Stratacache,
Inc. vy. Wenzel, 2019-Ohio-3523, 4 15 (Ct. App.) (citing Dayton Moduiars, hie. y. Dayton View
Community Dev. Corp., 2d Dist. Montgomery No. 20894, 2005 -Ohio-6257, € 10 and Russo, 36
Obio App.3d at 178,521 N.E.2d 1116. In addition, when imposing a discovery sanction, a court
“must impose the feast severe sanction that is consistent with the purpose of the rules of
discovery.” State v. Darmond, 2013-Ohio-966, J 21, 135 Ohio St. 3d 343, 348, 986 N.E.2d 971,
976 (emphasis added). Furthermore, “[djue process requires that both parties have an opportunity
to present arguments addressed to the trial court's exercise of this discretion before it makes a
decision.” Bank One, NA v. Wesley, 2d Dist. Montgomery No. 20259, 2004-Ohio-6051, € 21
Under the circumstances of this case, Defendants’ request for sanctions, including but not
limited to an award of expenses and attorneys’ fees associated with preparing
the Motion to
Compel and a waiver of any deficiency judgment against the Defendants, is entirely unreasonable
and unwarranted. Plaintiffs did not abuse the discovery process in any way, and the imposition of
sanctions of any kind would not unjust and unwarranted. As set forth above, Plaintiffs made
numerous and diligent efforts to communicate with opposing counsel and keep them apprised of
their progress in completing their production in response to the Defendants’ extremely broad
discovery requests. Plaintiffs never refused to provide responsive and non-privileged documents
or otherwise cooperate with Defendants during the entirety of the discovery process in this case.
Moreover, Defendants have suffered no prejudice as a result of Defendant’s request for extensions
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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(including Plaintiffs’ Motion to Continue Damages Hearing), given the amount of materials that
must be reviewed in preparation for the Damages Hearing, and considering the current date of the
Damages Hearing and posture of this case. Finally, Plaintiffs kept the Court fully advised of its
intent and ability to comply with the outstanding Discovery Requests through both email
correspondence in December 2022, and by filing its Motion to Continue Damages Hearing, and
never disobeyed any order or direction of the Court.
Furthermore, it would be inequitable for Plaintiffs to be sanctioned for their reasonable
requests for extension of time to comply with the Discovery Requests given Defendants’ own
efforts to stonewall Plaintiffs’ requests to supplement their own discovery responses over the past
even months. As set forth in previous filings and correspondence
with the Court, Defendants
repeatedly refused to supplement any discovery requests for over two years until forced to do so
by Order of the Court in preparation for the Damages Hearing. In fact, the first time Defendants
supplemented and provided any additional information to Plaintiffs was on April 4, 2023—ie,
the deadline established by the Court in the Scheduling Order over Defendants’ objection. Thus,
Defendants’ own delay and attempts to prejudice Plaintiffs’ attemptto prepare for the Damages
Hearing negate any argument that Defendants are somehow entitled to sanctions for Plaintiffs’
transparent and good faith conduct in this case. Defendants’ Motion to Compel and the request for
various sanctions requested therein should therefore be denied
WHEREFORE, for the reasons stated above, Plaintiffs respectfully request that the Court:
(i) deny Defendants’ Motion to Compel and the relief requested therein, and (ii) grant Plaintiffs
such other and further reliefas this Court deems just and appropriate.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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Dated: April 7, 2023 Respectfully submitted.
s/ Sean A. Gordon
Sean A. Gordon (OH Bar No. 0074243)
MatthewJ. Kerschner (OH Bar No. 0096902)
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
(216) 566-5500 @)/ 216): 566-5800 (F)
Sean. Gordon@Th ine com
Matthew Kersc DThomp ine corm
Counsel for Plaintiffs
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was electronically filed with
the Clerk of the Court by using the e-Filing system, which will send a notice of electronic filing to
all counsel registered to receive notice thereby, including:
Troy J. Doucet troy @doucet law
Dated: April 7, 2023 Respectfully submitted,
/s/ Sean A. Gordon
Sean A. Gordon (Ohio Bar No. 0074243)
Matthew J. Kerschner (Ohio Bar No. 0096902)
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
(216) 566-5500 5 (P)/ (216) 566-5800(F)
Sean. Gordc tho: onk com
Matthow Berschner AOD. ine.com
Counsel for Plaintiffs
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R24 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO APF —- CRE I, LLC & CASE NO. 20CV007082 APF - CPX I, LLC, MAGISTRATE JENNIFER CORDLE Plaintiffs, Vv TEHRAH HOSPITALITY, LLC, ABHIJIT S. VASANI & BHAVNA A. VASANT, Defendants. PLAINTIFFS’ MEMORANDUM CONTRA TO MOTION OF DEFENDANTS TO COMPEL DISCOVERY AND IMPOSE SANCTIONS Plaintiffs APF — CRE I, LLC (“APF — CRE”) and APF — CPX I, LLC (“APF — CPX”, and together with APF — CRE, collectively, “Plaintiffs”), successors in interest to Access Point Financial, LLC, f/k/a Access Point Financial, Inc. (“Access Point”), by and through undersigned counsel, file this Memorandum Contra (the “Response”) to the motion of Defendants Abhijit S. Vasani and Bhavna A. Vasani (collectively, “Defendants”) to compel discovery and impose sanctions (the “Motion to Compel”) in connection with Plaintiffs’ responses to Defendants’ First Combined Set of Requests for Admissions, Interrogatories, and Requests for the Production of Documents to Plaintiff (the “Discovery Requests” ). As set forth below, Defendants’ Motion to Compel and the requests contained therein are improper and untimely, as Plaintiffs have never refused to produce responsive and nonprivileged materials in response to the Discovery Requests. In fact, prior to the filing of this Response, and subject to finalization of a privilege log, Plaintiffs have completed their document review, rendering the Motion to Compel moot. In addition, the timing and manner of Plaintiffs’ production of documents in response to the Discovery Requests have been entirely reasonable given the Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R2 unnecessarily broad document requests propounded on Plaintiffs by the Defendants. Finally, Defendants’ request for various sanctions against Plaintiffs in the Motion to Compel are entirely unwarranted, inappropriate and baseless under the circumstances of this case, and considering the reasonable and good faith conduct of the Plaintiffs at all stages in this proceeding. In support, Plaintiffs respectfully state as follows I. Defendants’ Motion is Now Moot Because Plaintiffs Have Produced Responsive and Nonprivileged Documents. As athreshold matter, Plaintiffs have complied with Defendants’ Discovery Requests since the filing of the Motion to Compel, subject to finalizing a comprehensive privilege log for the entirety of the document production Specifically, on April 6, 2023, Plaintiffs produced an additional 1,804 responsive and nonprivileged documents, a total of 7,410 pages of materials, consistent with Plaintiffs’ representations in their Motion to (I) Continue Damages Hearing and (Il) Establish Case Management Deadlines, Including Deadline to Supplement Discovery Responses (the “Motion to Continue Damages Hearing”) filed on March 2, 2023 In total since receipt of the Discovery Requests, Plaintiffs have produced over 2,700 documents and almost 12,500 pages of materials in response to Defendants’ extremely broad Discovery Requests. Plaintiffs are in the process of finalizing a comprehensive privilege log, and will further supplement their discovery responses consistent with the Court’s Damages Hearing Contimumce and Amended Scheduling Order (the “Scheduling Order”) as may be necessary. Accordingly, the Motion to Compel is now moot and should be denied by the Court i, The Timing and Manner of Plaintiffs’ Production Is Reasonable Given Defendants’ Broad Discovery Requests Despite suggestions to the contrary in the Motion to Compe, the timing and manner of Plaintiffs’ production of responsive and nonprivileged documents is entirely reasonable given the Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R2 unnecessarily broad Discovery Requests that were issued by Defendants against Plaintiffs. As Plaintiffs have previously stated in prior briefing before the Court, the Court’s Entry on July 22, 2022 expressly limited the scope of Defendants’ discovery to discovery that is “necessary to prepare for the damages hearing,” given questions of fact surrounding “the unknown circumstances of the auction” for the hotel property. See Entry at p. 14 and 17 (emphasis added). However, Defendants have apparently taken this statement by the Court to mean that they may effectively reopen and redo discovery in this case, and have sought a broad array of documents and correspondence from Plaintiffs (as well as overa dozen third parties) seekingin formation from the entirety of the lending relationship between Plaintiffs and Defendants. By way of example, the Discovery Requests by Defendants seek all Documents referencing the account established between the Parties in connection with the Loan Documents, as well as all Documents and ESI between the parties without any sort of qualifying language. While Plaintiffs continue to assert that Defendants’ attempts to conduct such expansive discovery upon Plaintiffs is wholly wmecessary for the Damages Hearing, they have nevertheless acted in good faith to respond to the Discovery Requests in their entirety, producing over 2,700 documents and almost 12,500 pages of materials. These figures pale in comparison to the total amount of documents and pages that Plaintiffs and their counsel actually had to review in order to comply with Defendants’ overly broad Discovery Requests Accordingly, any contention by Defendants that the timing and manner of production in this litigation was unreasonable is wholly without merit given the expansive categories of materials that were requested Defendants severely and unfairly mischaracterize Plaintiff's’ conduct regarding discovery in this matter. Most of the Motion to Compel appears to be a play-by-play of the parties’ discussions about Plaintiffs’ production of responsive and nonprivileged documents, replete with Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 06337 - R27 baseless insinuations that Plaintiffs have not acted in good faith during the discovery process, and numerous mischaracterizations of statements madeby Plaintiffs’ counsel.! However, even casual readings of the various communications attached to the Motion to Compel, and Plaintiffs’ filings with the Court, show that Plaintiffs consistently and proactively communicated with opposing counsel to convey where Plaintiffs and their counsel were in the document review process. Specifically: ° In response to an email from Defendants’ counsel on December 28, 2022—a mere 13 days after Plaintiffs’ first production and in the middle of the Christmas and New Year holidays: Plaintiffs’ counsel informed Defendants that their client contacts were not entirely available due to the holidays and other travel commitments,that Plainti counsel would also be out of the office for multiple days due the New Year holiday, and that a status report would be provided after the New Year. See Defendants hibit L. 4 4 Tn response to a follow-up email from Defendants’ counsel on January 3,2 023, Plaintiffs’ counsel provided the status report that was promised in the first email referenced above and indicated that Plaintiffs expected to continueits rolling production of materials on or around January 17, 2023. Notably, this was the same date previously requested by Plaintiffs’ counsel for an extension of time to produce materi 1 vhich Defendants’ counsel refused to provide despite the impending holidays. Se: Plaintiffs timely served responses to two discovery deficiency letters sent by Defendants’ counsel on February 10 and March 2, 2023, in which Plaintiffs, among other things, () provided a percentage estimate of how many more materials needed to be vetted at that time, (ii) estimated when Plaintiffs anticipatedthe next production would occur, and (ii) indicated that they remained amenable to reasonable adjournments of the Damages Hearing if Defendants needed additional time to review Plaintiffs’ expansive production. See Defendants’ Exhibits O and O in addition to the above update, on March 3, 2023, Plaintiffs also filed its Motion to Continue Damages Hearing, in which Plaintiffs, among other things, informed both Defendants and the Court that Plaintiffs estimated that their document production would be completed within the next month In line with what was estimated, the document ' Perhaps nothing highlights Defendants’ unreasonable and illogical position, and mischaracterization of the parties’ correspondence, more than the following consecutive statements in the Motion to Compe: “On March 2, 2023, Plaintiffs’ counsel responded to the [second discovery deficiency] letter... refusing to provide a date certain on which production of therequested materials would occur. Plaintiffs even unilaterally gave themselves until March 31, 2023 to respond further.” A review of Plaintiffs’ response shows that Plaintiffs expressly provided an estimate of March 31,2023 for completion of production, in response to Defendants’ requestfora date certain by which production was expectedatthe time. Defendants cannothave it both way s—stating, on the one hand, that Plaintiffs refused to provide an estimated date for completion of production (which actually was provided as requested), and then, on the other hand, simultaneously arguing without basis that Plaintiffs “unilaterally ga ve themselves” a deadline. 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 06337 - R28 production was completed on April 6, 2023, subject only to finalization of Plaintiffs privilege fog. From a review of these various communications between the parties, and the Plaintiffs’ filings of record, itis abundantly clear that Plaintiffs and their counsel have remained upfront with both Defendants and the Court about the progress of their document production. Plaintiffs and their counsel have atall times acted transparently and in good faith, particularly considering the overly broad scope of what was requested by Defendants, the amount of materials that required review, and the current posture of the matter. At no point during discovery for this matter have Plaintiffs refused to cooperate with Defendants, refused to provide responsive and non-privileged documents, or failed to provide a status report to Defendants and their counsel when asked to do so. In fact, Plaintiffs proactively and consistently sought to work with Defendants’ counsel in good faith with regard to discovery, scheduling, and timing in this action to avoid prejudice to either side, Finally, Plaintiffs have remained and continue to remain amenable to reasonable accommodations and modifications to the discovery and case management deadlines memorialized in the Scheduling Order as may be necessary. Thus, any suggestion by Defendants that the timing and manner of production has been unreasonable is meritless and the Motion to Compel should be denied. Tih. Discovery Sanctions Are Unwarranted, Inappropriate and Baseless Under the Circumstances, Finally, Defendants’ request for various sanctions against Plaintiffs in the Motion to Compel are entirely unwarranted, inappropriate and baseless under the circumstances of this case. “itis exclusively within the discretion of the trial court to determine an appropriate sanction fora discovery infraction.” McKowen v, United Church Homes, inc., 2d Dist. Greene No. 2005 CA 144, Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R2 2006-Ohio-6607, {| 10, citing Russo vy. Goodyear Tire & Rubber Co., 36 Ohio App.3d 175, 178, 521 N.E.2d 1116 (9th Dist. 1987). When considering what sanction, if any, to impose for a party’s failure to comply with discovery, “‘the trial court must consider the posture of the case and what efforts, if any, preceded the noncompliance and then balance the severity of the violation against the degree of possible sanctions, selecting that sanction which is most appropriate.’” Stratacache, Inc. vy. Wenzel, 2019-Ohio-3523, 4 15 (Ct. App.) (citing Dayton Moduiars, hie. y. Dayton View Community Dev. Corp., 2d Dist. Montgomery No. 20894, 2005 -Ohio-6257, € 10 and Russo, 36 Obio App.3d at 178,521 N.E.2d 1116. In addition, when imposing a discovery sanction, a court “must impose the feast severe sanction that is consistent with the purpose of the rules of discovery.” State v. Darmond, 2013-Ohio-966, J 21, 135 Ohio St. 3d 343, 348, 986 N.E.2d 971, 976 (emphasis added). Furthermore, “[djue process requires that both parties have an opportunity to present arguments addressed to the trial court's exercise of this discretion before it makes a decision.” Bank One, NA v. Wesley, 2d Dist. Montgomery No. 20259, 2004-Ohio-6051, € 21 Under the circumstances of this case, Defendants’ request for sanctions, including but not limited to an award of expenses and attorneys’ fees associated with preparing the Motion to Compel and a waiver of any deficiency judgment against the Defendants, is entirely unreasonable and unwarranted. Plaintiffs did not abuse the discovery process in any way, and the imposition of sanctions of any kind would not unjust and unwarranted. As set forth above, Plaintiffs made numerous and diligent efforts to communicate with opposing counsel and keep them apprised of their progress in completing their production in response to the Defendants’ extremely broad discovery requests. Plaintiffs never refused to provide responsive and non-privileged documents or otherwise cooperate with Defendants during the entirety of the discovery process in this case. Moreover, Defendants have suffered no prejudice as a result of Defendant’s request for extensions Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R30 (including Plaintiffs’ Motion to Continue Damages Hearing), given the amount of materials that must be reviewed in preparation for the Damages Hearing, and considering the current date of the Damages Hearing and posture of this case. Finally, Plaintiffs kept the Court fully advised of its intent and ability to comply with the outstanding Discovery Requests through both email correspondence in December 2022, and by filing its Motion to Continue Damages Hearing, and never disobeyed any order or direction of the Court. Furthermore, it would be inequitable for Plaintiffs to be sanctioned for their reasonable requests for extension of time to comply with the Discovery Requests given Defendants’ own efforts to stonewall Plaintiffs’ requests to supplement their own discovery responses over the past even months. As set forth in previous filings and correspondence with the Court, Defendants repeatedly refused to supplement any discovery requests for over two years until forced to do so by Order of the Court in preparation for the Damages Hearing. In fact, the first time Defendants supplemented and provided any additional information to Plaintiffs was on April 4, 2023—ie, the deadline established by the Court in the Scheduling Order over Defendants’ objection. Thus, Defendants’ own delay and attempts to prejudice Plaintiffs’ attemptto prepare for the Damages Hearing negate any argument that Defendants are somehow entitled to sanctions for Plaintiffs’ transparent and good faith conduct in this case. Defendants’ Motion to Compel and the request for various sanctions requested therein should therefore be denied WHEREFORE, for the reasons stated above, Plaintiffs respectfully request that the Court: (i) deny Defendants’ Motion to Compel and the relief requested therein, and (ii) grant Plaintiffs such other and further reliefas this Court deems just and appropriate. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R31 Dated: April 7, 2023 Respectfully submitted. s/ Sean A. Gordon Sean A. Gordon (OH Bar No. 0074243) MatthewJ. Kerschner (OH Bar No. 0096902) THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 (216) 566-5500 @)/ 216): 566-5800 (F) Sean. Gordon@Th ine com Matthew Kersc DThomp ine corm Counsel for Plaintiffs Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 07 3:23 PM-20CV007082 0G337 - R3 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was electronically filed with the Clerk of the Court by using the e-Filing system, which will send a notice of electronic filing to all counsel registered to receive notice thereby, including: Troy J. Doucet troy @doucet law Dated: April 7, 2023 Respectfully submitted, /s/ Sean A. Gordon Sean A. Gordon (Ohio Bar No. 0074243) Matthew J. Kerschner (Ohio Bar No. 0096902) THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 (216) 566-5500 5 (P)/ (216) 566-5800(F) Sean. Gordc tho: onk com Matthow Berschner AOD. ine.com Counsel for Plaintiffs