Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
APF CRE ILLC, et al., Case No: 20 CV 007082
Plaintiffs, Judge Kim J. Brown
v. Magistrate Jennifer R. Cordle
Tehrah Hospitality LLC, et al.,
Defendants.
DEFENDANTS’ REPLY TO THEIR MOTION TO COMPEL DISCOVERY FILED
MARCH 24, 2023
Has Plaintiff completed sending Defendants discovery? No.
Eight months after the original service of discovery requests upon Plaintiff, and only after
the instant Motion to Compel, Plaintiff finally produced additional discovery responses to
Defendants. Despite its earlier representations that it had only approximately 25% more
responsive documents to provide, the most recent production is 140% more documents than
previously provided.
Despite Plaintiff s inability to timely produce documents in this matter, its counsel has
had no problem pursing collection activity against Mr. Vasani in other matters. That includes
taking a debtors’ exam deposition and recently seeking to depose a corporate representative of
his companies to pursue those efforts.
Rather than Plaintiffs delays in producing discovery be the result of a bona fide effort to
produce discovery, it appears more geared to accomplishing what it could not accomplish
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082
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through its earlier motion for a protective order — thwarting Defendants ability to obtain
discovery to aid in their defense
A. Missing Discovery
It is clear the following two groups of evidence still have not been produced to
Defendants. These failures warrant sanctions against Plaintiff as outlined in Defendants’ motion
1 Privilege Log. Plaintiff admits it still has not produced a privilege log. Pl. Memo Contra pg.
2. It states that it is still “in the process of finalizing a comprehensive privilege log.” Jd.
None has yet been provided.
As the Court can see from the attached Exhibit A, Plaintiff has redacted vast swaths of
documents, many of which do not involve counsel and otherwise appear unrelated to any
privilege.
Other redactions do not make sense or appear simply frivolous. For example, Exhibit B
contains a redaction in part of an email chain. That same section is not redacted in another email
chain, attached here as Exhibit C. There appears absolutely no basis for redaction other than to
frustrate Defendants’ ability to obtain discovery. The redacted section reads:
“Also, [Defendant] Andy [Vasani] always disagreed with me on loan
7059201 that BOTH Holiday Inn Express Obetz and Hampton Inn Sidney
were co-borrowers and collateral ono the deal I never understood that but
he was getting argumentative at the end.”
Other redactions are meaningless without a privilege log. For example, Exhibit D is just
five black pages. The only markings on these pages is the Bates numbering and the marking of
“CONFIDENTIAL” as if black ink should be hidden from public view. '
2. Email Communications. There are gaping holes in the email communications provided by
Plaintiff. Even the most recent batch of discovery documents contain no originating emails
prior to April 14, 2021.7
1 There is no discovery protective order in place to make that designation meaningful.
? There are one or two emails that contain a minimal prior chain of dated emails.
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Emails prior to April 14, 2021 are significant because that is the date of sale of the
underlying company that held the property. Despite the property’s value being in excess of $7
million, its holding company was sold for a mere $50,000 on a credit bid to the Plaintiff. Exhibit
E. That Exhibit represents that publication of the sale was made in the Columbus Dispatch and
Toledo Blade, but no evidence of that has been provided, nor have any email communications
prior to that. The only apparent communication from that sale is a letter from Plaintiffs counsel
Exhibit F.
There are other glaring omissions in the emails provided that are relevant to Defendants’
evidence. For example, Exhibit G is an email chain with the hotel’s franchise that go back
several months and outline deficiencies in Plaintiff providing it documents necessary to keep the
franchise in place. However, multiple original emails referenced in this chain (and any attendant
responses) are not in this production. If Plaintiff was at risk of losing this franchise agreement, it
would significantly impact the value of the property and the willingness of others to buy it at full
value, which would support Defendants’ position that the property was sold for less than its
market value.
Exhibit H and I are amendments to the purchase of the underlying property with the
ultimate buyer that appear in a vacuum (Alfons Beshi/Tollgate). These are two substantial
documents relating to the sale of the property, and yet there are nearly no email communications
surrounding the drafting, presentation, execution, or delivery of these to anyone. As Defendants
argue that the sale occurred for millions of dollars under the true market value (and have already
disclosed their witness with report substantiating this position) as a result of collusion, the
communications surrounding the transaction are clearly critical to their discovery efforts
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082
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Another area of communications highly relevant to Defendants’ defense are spreadsheets
that were created which outlined all the potential buyers at the auction and the dollar amounts
that each were qualified to bid to. However, there appears to be only one early version of this
document provided, despite multiple emails indicating updates were circulating
Plaintiff's discovery failures warrant sanctions because they have effectively thwarted
Defendants’ ability to defend this matter. Plaintiff's most recent discovery production occurred
on April 6, 2023 and amounts to nearly 60% of all the documents it produced. Despite the
original request being made in August, 2022, Defendants are only now able to identify multiple
individual people with discoverable information. Yet, as outlined above, there are still gaping
holes in the discovery produced, making a final assessment by Defendants of the breadth of the
needed depositions impossible. This amounts to extreme prejudice to their ability to defend this
matter and prepare for a damages trial in two months.
B. Plaintiff did not meet the discovery deadline it insisted upon.
Equally remarkable is Plaintiff's insistence upon setting deadlines leading up to the
damages hearing that it was unable to meet. The Court finally adopted Plaintiffs proposed
deadlines on March 28, 2028. In that Order, the Court found that the parties were required to
supplement all responsive materials by April 4, 2023. Order Mar. 28, 2023 p. 2-3. Yet, Plaintiff
only produced a page letter and none of the supplemented documents. Exhibit J. As it admits in
its memorandum contra to this instant motion (page 4-5), it failed to deliver the additional
thousands of documents until April 6, 2023. Worse still is its representation to the Court in its
memorandum that it “will further supplement [its] discovery responses consistent with the
Court’s [order] ” Id. Defendants are again left wondering what other documents it is hiding or
that it hasn’t yet produced.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082
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Defendants are now in the position of being completely unable to defend the damages
hearing in June due to Plaintiff's recalcitrant discovery conduct. Plaintiff slow rolled discovery
while continuing to promise that documents were right around the corner. They promised that
only 25% of documents remained while producing 140% more only after Defendants filed this
Motion to Compel
Plaintiff failed to produce supplemental discovery by the Court-ordered deadline that it
insisted upon setting. It has still not yet produced a privilege log. It failed to produce series of
email communications. It has failed to take its obligations in this litigation seriously while
aggressively pursuing owner Mr. Vasani in other litigation. Plaintiff has attempted to
accomplish through its conduct what it could not accomplish with its Motion for a Protective
Order this Court previously denied. Its conduct calls for Court intervention.
For the above reasons, Defendants request the Court grant their motion for sanctions in
its entirety.
Respectfully Submitted,
DOUCET CO., L-P.A
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 Abhijit and Bhavna Vasani
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082
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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 19" day of April, 2022, pursuant to Civ.R. 5(B)(2)(f)
Sean Gordon
Matthew Kerschner
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114-1291
PH: (216) 556-5500
Fax: (216) 566-5800
sean.gordon@thompsonhine.com
matthew. kerschner@thompsonhine.com
Attorneys for Plaintiff
/s/ Troy J. Doucet
Troy J. Doucet (0086350)
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D9 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO APF CRE ILLC, et al., Case No: 20 CV 007082 Plaintiffs, Judge Kim J. Brown v. Magistrate Jennifer R. Cordle Tehrah Hospitality LLC, et al., Defendants. DEFENDANTS’ REPLY TO THEIR MOTION TO COMPEL DISCOVERY FILED MARCH 24, 2023 Has Plaintiff completed sending Defendants discovery? No. Eight months after the original service of discovery requests upon Plaintiff, and only after the instant Motion to Compel, Plaintiff finally produced additional discovery responses to Defendants. Despite its earlier representations that it had only approximately 25% more responsive documents to provide, the most recent production is 140% more documents than previously provided. Despite Plaintiff s inability to timely produce documents in this matter, its counsel has had no problem pursing collection activity against Mr. Vasani in other matters. That includes taking a debtors’ exam deposition and recently seeking to depose a corporate representative of his companies to pursue those efforts. Rather than Plaintiffs delays in producing discovery be the result of a bona fide effort to produce discovery, it appears more geared to accomplishing what it could not accomplish Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D9 through its earlier motion for a protective order — thwarting Defendants ability to obtain discovery to aid in their defense A. Missing Discovery It is clear the following two groups of evidence still have not been produced to Defendants. These failures warrant sanctions against Plaintiff as outlined in Defendants’ motion 1 Privilege Log. Plaintiff admits it still has not produced a privilege log. Pl. Memo Contra pg. 2. It states that it is still “in the process of finalizing a comprehensive privilege log.” Jd. None has yet been provided. As the Court can see from the attached Exhibit A, Plaintiff has redacted vast swaths of documents, many of which do not involve counsel and otherwise appear unrelated to any privilege. Other redactions do not make sense or appear simply frivolous. For example, Exhibit B contains a redaction in part of an email chain. That same section is not redacted in another email chain, attached here as Exhibit C. There appears absolutely no basis for redaction other than to frustrate Defendants’ ability to obtain discovery. The redacted section reads: “Also, [Defendant] Andy [Vasani] always disagreed with me on loan 7059201 that BOTH Holiday Inn Express Obetz and Hampton Inn Sidney were co-borrowers and collateral ono the deal I never understood that but he was getting argumentative at the end.” Other redactions are meaningless without a privilege log. For example, Exhibit D is just five black pages. The only markings on these pages is the Bates numbering and the marking of “CONFIDENTIAL” as if black ink should be hidden from public view. ' 2. Email Communications. There are gaping holes in the email communications provided by Plaintiff. Even the most recent batch of discovery documents contain no originating emails prior to April 14, 2021.7 1 There is no discovery protective order in place to make that designation meaningful. ? There are one or two emails that contain a minimal prior chain of dated emails. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D94 Emails prior to April 14, 2021 are significant because that is the date of sale of the underlying company that held the property. Despite the property’s value being in excess of $7 million, its holding company was sold for a mere $50,000 on a credit bid to the Plaintiff. Exhibit E. That Exhibit represents that publication of the sale was made in the Columbus Dispatch and Toledo Blade, but no evidence of that has been provided, nor have any email communications prior to that. The only apparent communication from that sale is a letter from Plaintiffs counsel Exhibit F. There are other glaring omissions in the emails provided that are relevant to Defendants’ evidence. For example, Exhibit G is an email chain with the hotel’s franchise that go back several months and outline deficiencies in Plaintiff providing it documents necessary to keep the franchise in place. However, multiple original emails referenced in this chain (and any attendant responses) are not in this production. If Plaintiff was at risk of losing this franchise agreement, it would significantly impact the value of the property and the willingness of others to buy it at full value, which would support Defendants’ position that the property was sold for less than its market value. Exhibit H and I are amendments to the purchase of the underlying property with the ultimate buyer that appear in a vacuum (Alfons Beshi/Tollgate). These are two substantial documents relating to the sale of the property, and yet there are nearly no email communications surrounding the drafting, presentation, execution, or delivery of these to anyone. As Defendants argue that the sale occurred for millions of dollars under the true market value (and have already disclosed their witness with report substantiating this position) as a result of collusion, the communications surrounding the transaction are clearly critical to their discovery efforts Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D9 Another area of communications highly relevant to Defendants’ defense are spreadsheets that were created which outlined all the potential buyers at the auction and the dollar amounts that each were qualified to bid to. However, there appears to be only one early version of this document provided, despite multiple emails indicating updates were circulating Plaintiff's discovery failures warrant sanctions because they have effectively thwarted Defendants’ ability to defend this matter. Plaintiff's most recent discovery production occurred on April 6, 2023 and amounts to nearly 60% of all the documents it produced. Despite the original request being made in August, 2022, Defendants are only now able to identify multiple individual people with discoverable information. Yet, as outlined above, there are still gaping holes in the discovery produced, making a final assessment by Defendants of the breadth of the needed depositions impossible. This amounts to extreme prejudice to their ability to defend this matter and prepare for a damages trial in two months. B. Plaintiff did not meet the discovery deadline it insisted upon. Equally remarkable is Plaintiff's insistence upon setting deadlines leading up to the damages hearing that it was unable to meet. The Court finally adopted Plaintiffs proposed deadlines on March 28, 2028. In that Order, the Court found that the parties were required to supplement all responsive materials by April 4, 2023. Order Mar. 28, 2023 p. 2-3. Yet, Plaintiff only produced a page letter and none of the supplemented documents. Exhibit J. As it admits in its memorandum contra to this instant motion (page 4-5), it failed to deliver the additional thousands of documents until April 6, 2023. Worse still is its representation to the Court in its memorandum that it “will further supplement [its] discovery responses consistent with the Court’s [order] ” Id. Defendants are again left wondering what other documents it is hiding or that it hasn’t yet produced. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D9 Defendants are now in the position of being completely unable to defend the damages hearing in June due to Plaintiff's recalcitrant discovery conduct. Plaintiff slow rolled discovery while continuing to promise that documents were right around the corner. They promised that only 25% of documents remained while producing 140% more only after Defendants filed this Motion to Compel Plaintiff failed to produce supplemental discovery by the Court-ordered deadline that it insisted upon setting. It has still not yet produced a privilege log. It failed to produce series of email communications. It has failed to take its obligations in this litigation seriously while aggressively pursuing owner Mr. Vasani in other litigation. Plaintiff has attempted to accomplish through its conduct what it could not accomplish with its Motion for a Protective Order this Court previously denied. Its conduct calls for Court intervention. For the above reasons, Defendants request the Court grant their motion for sanctions in its entirety. Respectfully Submitted, DOUCET CO., L-P.A 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 Abhijit and Bhavna Vasani Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 19 2:10 PM-20CV007082 0G354 - D97 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 19" day of April, 2022, pursuant to Civ.R. 5(B)(2)(f) Sean Gordon Matthew Kerschner Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, OH 44114-1291 PH: (216) 556-5500 Fax: (216) 566-5800 sean.gordon@thompsonhine.com matthew. kerschner@thompsonhine.com Attorneys for Plaintiff /s/ Troy J. Doucet Troy J. Doucet (0086350)