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IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
MICHAEL A. RENNE, as Guardian of the ) CASE NO. CV-2020-02-0578
Estate of L.P., a minor. )
) JUDGE MARY MARGARET ROWLANDS
Plaintiff, )
) PLAINTIFF’S RESPONSE TO
vs. ) DEFENDANTS’ MOTION TO COMPEL
)
SUMMA HEALTH SYSTEM, et al. )
)
Defendants )
)
NOW COMES the Plaintiff, pursuant to Loc.R. 7.14(A) of the Court of Common Pleas of
Summit County, General Division, and hereby requests that this Honorable Court deny
Defendant Summa Health System’s Motion to Compel. Among the reasons therefore, Plaintiff
submits that Defendant Summa Health seeks confidential information protected from disclosure
by R.C. 5153.17 and seeks irrelevant information beyond the scope of Civ.R. 26. In further
support, Plaintiff submits as follows:
Defendant’s Motion to Compel should be denied because Plaintiff has produced all
relevant, non-privileged, and responsive information in Plaintiff’s possession, custody, or control
- control being the operative term for this motion. After Plaintiff’s original Complaint was filed,
the Probate Court in Summit County terminated former Plaintiff, Olivia Patterson’s parental
rights. Subsequently, Olivia Patterson, the minor Plaintiff’s mother, dismissed her claims against
defendants. Thereafter, Plaintiff successfully petitioned the Probate Court, which had appointed
attorney Michael Renne as the GAL in this matter, to order that the new Guardian for L.P.,
Summit County Children Services (SCCS), provide access to L.P. and his medical records to the
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parties in this matter. The Probate Court granted that access and ordered SCCS to provide
authorizations and other information related to L.P. that Plaintiff did not possess prior thereto.
Plaintiff’s counsel explained this, and more, in our letter to counsel for Defendants,
Attorney Rossi on February 23, 2022. (See February 23, 2022 Letter from Plaintiff Attorney Lisa
Weinstein to defense counsel attached as Exhibit 1). Rather than discuss obtaining the
discovery disclosed in our letter, defense counsel has pressed forward with this Motion to
Compel.
This Court should deny Defendant’s Motion to Compel because Counsel for the Plaintiff
has complied with all discovery obligations by producing all non-privileged, relevant records and
information in our control. Plaintiff’s counsel has also committed to supplement their discovery
responses and produce all non-privileged, relevant records, as they are received in the future.
(Ex. 1, p. 2). Moreover, this Court should deny Defendant’s Motion to Compel any documents
and/or testimony that is confidential and/or irrelevant because such documents and/or testimony
is beyond the scope of Rule 26 of the Ohio Rules of Civil Procedure.
In further support, Plaintiff submits this memorandum of law.
PROCEDURAL HISTORY AND FACTUAL HISTORY
Pregnant mother Olivia Patterson presented to Defendant Summa Health Systems
(hereinafter “Defendant Summa Health”) on February 12, 2019, with severe abdominal pain and
suspected placental abruption. Despite over four hours of concerning fetal heart tracings and
Olivia’s worrisome clinical presentation, delivery of L.P. by cesarean section did not occur until
approximately 6:25 a.m. on February 12, 2019. Following delivery, a 50% placental abruption
was confirmed. L.P. entered the world in respiratory distress and has subsequently suffered
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global developmental delay caused by his intrapartum hypoxic injury. L.P. was diagnosed with
cerebral palsy and will require life-long medical and therapeutic care.
Plaintiff filed the original Complaint in this matter on February 12, 2020. At that time,
the minor-Plaintiff, L.P, was involved in a custody dispute between his mother, Olivia Patterson
and Summit County Children Services (SCCS). The Court of Common Pleas for Summit
County, Juvenile Division (Juvenile Court) had previously awarded temporary custody of L.P. to
SCCS on May 23, 2019, but Olivia was appealing that decision and seeking to regain full
custody of L.P. After an extended process in Juvenile Court, a closed hearing on the issue was
held on February 25, 2021, at which time Judge Teodosio terminated Olivia’s parental rights and
granted permanent custody of L.P. to SCCS. (See February 25, 2021 Order, to be filed under
seal due to confidential information contained therein and, thereafter, attached as Exhibit 2). The
Juvenile Court did not allow Mr. Rossi, counsel for Defendants, to attend that closed hearing
upon his request. When Mr. Rossi sought permission from Olivia’s counsel in the Juvenile
Court matter to attend the hearing, it was denied as well. 1
After the Defendants answered the original Complaint, the parties exchanged written
discovery requests so that all relevant and material information and documents could be gathered
prior to the start of oral discovery. Despite the complex custody situation, Plaintiff’s counsel
remained intent on moving this case forward as much as possible.
On April 18, 2020, Plaintiff filed an Application for Appointment of Michael A. Renne
as Guardian of L.P.’s Estate in the Probate Court for Summit County so that Mr. Renne could
serve as an advocate for L.P.’s interests in this litigation while the custody dispute continued in
Juvenile Court.
1
Counsel for Summa Health sought, and then withdrew, a request to attend the February 25, 2021 custody
proceedings. (See Email Correspondence from Attorney Rossi attached as Exhibit 3).
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Plaintiff’s counsel served answers to Defendants’ Interrogatories and responses to
Defendants’ Request for Production on May 22, 2020. (See Plaintiff’s Answers to Defendants’
written discovery attached to the Motion to Compel as Exhibit A). All relevant information and
records were produced in those answers and responses, subject to Plaintiff’s stated objections. At
the same time, Plaintiffs were requesting updated records for L.P. through authorizations signed
by his mother, Olivia. However, due to the custody dispute that was proceeding at that time with
SCCS in the Juvenile Court, the medical care providers of whom Plaintiff’s counsel was aware
for L.P. would not honor authorizations for records signed by Olivia Patterson.
On May 27, 2020, the Probate Court granted Letters of Guardianship of L.P.’s Estate to
Mr. Renne. On August 21, 2020, Plaintiffs filed his Amended Complaint in this matter, adding
Mr. Renne as Guardian of L.P.’s Estate. After receiving his Letters of Guardianship and with the
Amended Complaint having been filed, Mr. Renne began working with Plaintiff’s counsel to
obtain additional information from SCCS regarding L.P. and to obtain L.P.’s records from his
medical care providers. However, SCCS refused to provide that information to Mr. Renne or
Plaintiff’s counsel and L.P.’s medical care providers refused to provide medical records for L.P.
in response to authorizations signed by Mr. Renne as Guardian of the Estate.
On August 26, 2020, Plaintiff supplemented his production to Defendants, enclosing
neurological scans for L.P. On September 9, 2020, Plaintiff supplemented his production to
Defendants, enclosing records from the Lakemore Police & Fire Department for Olivia
Patterson.
On September 10, 2020, Mr. Rossi, counsel for Defendants, requested by letter updated
medical records for L.P. (See letter of September 10, 2020, attached hereto as Exhibit 4).
Plaintiffs continued to work with Mr. Renne to request information regarding L.P.’s medical
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status and records related to his medical care from SCCS, but all attempts were rejected by that
agency. On November 17, 2020, Mr. Rossi requested by letter dates for the deposition of Olivia
Patterson, as well as an opportunity to “see L.P., if at all possible” which could proceed by Zoom
or another virtual source. (See letter of November 17, 2020, attached hereto as Exhibit 5). Over
the next several months, the depositions of Olivia Patterson and the Defendant physicians were
set and continued multiple times due to the Covid-19 pandemic. It was during this time that the
Juvenile Court on February 25, 2021 terminated Olivia Patterson’s parental rights and granted
permanent custody of L.P. to SCCS.
Upon submission of an Agreed Motion by the parties, the Court entered an Amended
Case Management Order in this matter on March 2, 2021 that remains in effect at this time. (See
3/2/21 Order attached as Exhibit 6). On August 3, 2021, Mr. Rossi submitted his Second
Interrogatories and Second Request for Production upon Plaintiffs by letter. Mr. Rossi also
requested dates for Olivia Patterson’s deposition, a Zoom meet and greet with L.P., and
supplementation of L.P.’s medical records through that letter. (See letter of August 3, 2021,
attached hereto as Exhibit 7).
On August 13, 2021, Lisa Weinstein, counsel for Plaintiff, responded to Mr. Rossi,
informing him of the efforts she had made to obtain L.P.’s records and authorizations for the
same from SCCS through Olivia Patterson and Mr. Renne. (See letter of August 13, 2021,
attached hereto as Exhibit 8). Ms. Weinstein also informed Mr. Rossi that Olivia was appealing
the termination of her parental rights and that Ms. Weinstein did not believe that SCCS would
allow Mr. Rossi to record any Zoom meeting with L.P. since L.P. was a ward of theirs. (Ex. 8).
Plaintiffs then served answers to Defendants’ Second Interrogatories and responses to
Defendants’ Second Request for Production, which focused on the custody issue, on September
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13, 2021. (See Plaintiff’s Answers to Defendants’ Second set of written discovery attached to the
Motion to Compel as Exhibit B).
On October 5, 2021, Mr. Rossi then wrote to Ms. Weinstein seeking supplementation of
Plaintiff’s Answers to Defendants’ Second set of written discovery. (See letter of October 5,
2020, attached to Defendants’ Motion to Compel as Exhibit D).
On October 11, 2021, Ms. Weinstein responded to Mr. Rossi by letter and supplemented
Plaintiff’s answers with additional information that had been obtained since the prior answers to
Defendants’ Second Interrogatories and responses to Defendants’ Second Request for Production
on September 13, 2021. (See letter of October 11, 2021, attached hereto as Exhibit 9)
Olivia Patterson was presented for her deposition on October 12, 2021. (See transcript of
Olivia Patterson’s deposition attached hereto as Exhibit 10). During her deposition, Mr. Rossi
questioned Olivia, among other things, regarding Plaintiff’s previous answers to written
discovery, the status of her custody dispute with SCCS, and her knowledge of L.P.’s then current
medical condition. Ms. Weinstein represented Olivia Patterson during that deposition and made
appropriate and consistent objections to protect the confidential information regarding Olivia’s
then pending custody dispute with SCCS regarding L.P. and to prevent Mr. Rossi from inquiring
as to lines of questioning that were clearly irrelevant to the claims and defenses in this matter.
Otherwise, Olivia provided all the information that she possessed regarding L.P. and his medical
condition, which is the primary issue in this case, during her deposition. (Ex. 10).
On October 18, 2021, Mr. Rossi sent a letter to Ms. Weinstein requesting the production
of L.P.’s updated medical records and the provision of the confidential information he had
requested, and which Plaintiff’s counsel objected to, in Olivia’s deposition. (See letter of October
18, 2021, attached to the Motion to Compel as Exhibit E). In short, Mr. Rossi’s letter requested
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information and documents that he already knew Plaintiff’s counsel was incapable of providing
per his prior discussions with Ms. Weinstein by phone and during Olivia Patterson’s deposition.
On November 9, 2021, since all efforts and multiple attempts to obtain cooperation from
SCCS in order to obtain information regarding L.P.’s medical care providers and authorizations
for L.P.’s medical records had failed, Mr. Renne obtained an Order from the Probate Court in
Summit County compelling SCCS to provide such information for this litigation. (See Order of
November 9, 2021, attached hereto as Exhibit 11). Mr. Renne then submitted the Order to a
corporate representative for SCCS and requested compliance.
On November 18, 2021, Ms. Weinstein responded to Mr. Rossi once again explaining
Plaintiff’s inability to provide certain information and documents and explaining why Plaintiff
was standing on his objections regarding the confidential information involved in Olivia’s
custody dispute with SCCS. (See letter of October 18, 2021, attached to the Motion to Compel as
Exhibit F). Ms. Weinstein also informed Mr. Rossi of the Probate Court’s November 9, 2021
Order and her expectation that SCCS would comply with that Order and provide the requested
information and documents. (Ex. F to Motion to Compel).
On January 27, 2022, Mr. Rossi sent a letter to Ms. Weinstein that rehashed the issues
from his October 18, 2021 letter. (See letter of January 27, 2022 attached to the Motion to
Compel as Exhibit G). Through this letter, Mr. Rossi also brought up for the first time a request
that defense experts, without specifically naming them, be allowed to examine L.P. (Ex. G. to the
Motion to Compel). On February 1, 2022, Edward Aucoin, counsel for Plaintiff, informed Mr.
Rossi that Plaintiff would respond to the January 27, 2022 letter. (See email of February 1, 2022
attached to the Motion to Compel as Exhibit H).
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While Plaintiff was preparing a response to Mr. Rossi’s January 27, 2022 letter,
Defendants filed their Motion to Compel on February 23, 2022. On that same day, Plaintiff
responded to Mr. Rossi’s January 27, 2022 letter explaining his position on all disputed
discovery issues. (See letter of February 23, 2022, attached hereto as Exhibit 1). Through his
February 23, 2022 letter, Plaintiff identified all medical care providers and education providers
that were recently identified by SCCS pursuant to the Probate Court’ order. (Ex. 1, pp. 1-2).
ARGUMENT
Plaintiff’s counsel has been attempting to obtain information regarding the minor
Plaintiff, L.P.’s custodial situation, his medical treaters and facilities that have provided care, and
other information on him relevant to this action since they were retained several years ago. All
attempts had been unfruitful, as detailed above, when SCCS refused to cooperate with Plaintiff’s
counsel during the pendency of the custody dispute with Olivia Patterson. After Plaintiff’s
Petition to Access L.P.’s records was granted and Order regarding the same was entered on
November 9, 2021, Plaintiff’s counsel has diligently sought discoverable information from
SCCS. Once that information was received from SCCS, Plaintiff identified L.P.’s medical
providers specializing in neurology, gastroenterology, speech therapy, and physical therapy,
among other disciplines, and provided that information to defense counsel. (Ex. 1, p. 1).
Plaintiff’s counsel also identified and disclosed L.P.’s provider of early intervention services and
IEP services. (Ex. 1, p. 1). Finally, now that SCCS has responded to the Probate Court’s order,
Plaintiff’s counsel has agreed to produce all non-privileged, relevant, and responsive records
upon receipt to Defendants. (Ex. 1, pp. 1-2).
As for Plaintiff’s objections to Defendants’ written discovery and questions to Olivia
Patterson during her discovery deposition regarding the SCCS investigation and the Juvenile
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Court proceedings regarding that investigation to determine L.P.’s custody, Plaintiff maintains
that such information and related documents are statutorily protected as confidential, are beyond
the scope of permissible discovery under Civ.R. 26, and seeks information inconsistent with the
Case Management Order. Each request for such information within the Motion to Compel is
without merit and therefore should be denied.
I. Plaintiff L.P.’s medical records and bills
Defendant Summa Health has moved for an order producing L.P.’s medical records for
“treatment after December 2019.” This request is an implicit admission that Plaintiff has already
produced relevant medical records and bills - we agree. Specifically, Plaintiff has produced
relevant records for Olivia Patterson from Summa Physicians Medical Group and Summa Health
System – Akron. Plaintiff has also produced relevant records for L.P. from Summa Health
System – Akron and Akron Children’s Hospital. These records detail the medical care that was
provided by defendants in this matter, and these records detail L.P.’s neonatal course following
his traumatic birth.
As detailed above, Plaintiff’s counsel was stymied from requesting further medical
records because the identity of those providers was beyond Plaintiff’s personal knowledge and
control. While in the custody of SCCS, the identity of L.P.’s care providers was confidential.
See R.C. 5153.17 (“public children services agency shall prepare and keep written records . . . of
the care, training, and treatment afforded children . . .” and “[s]uch records shall be
confidential.”).
Plaintiff, and not Defendant Summa Health, sought relief by petitioning the Probate
Court for certain information regarding L.P. from SCCS. While Defendant was well aware of
Plaintiff’s prior attempts to obtain such information from SCCS and provide it to Defendant,
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defense counsel did not bring such a Petition before this Court, the Probate Court, or the Juvenile
Court. Defendants did not use any discovery device, including subpoena, to discover the
information directly from SCCS. Rather, defense counsel simply demanded that Plaintiff
produce the records after they were aware that Plaintiff could not at that time. In fact, as of the
date of filing this Brief in Opposition, defense counsel have not yet even submitted any
subpoenas to the health care providers that Plaintiff’s disclosed to them on February 23, 2022,
even though they claim prejudice from not having those records. Rather than avail themselves of
the usual discovery tools provided under the Ohio Rules of Civil Procedure to obtain those
records, Defendants instead persist with their Motion to Compel regarding that issue.
Per the Probate Court, Plaintiff may now access and, upon receipt, subsequently disclose,
“all medical care that L.P. has received since his birth,” “all educational institutions and social
services agencies . . . L.P. has received [services] since his birth,” and “execute any medical
and/or education/social service authorizations . . . for L.P.’s records throughout the pendency of
the civil matter.” (Ex. 11). Per Plaintiff’s counsel’s correspondence with Attorney Rossi dated
February 23, 2022, Plaintiff’s counsel has requested updated records and has agreed to produce
any non-privileged, relevant, and responsive records to defense counsel. (Ex. 1 at p. 1). As
such, Plaintiff’s counsel’s position satisfies our discovery obligations. See Civ.R.26(E)
(“Supplementation of Responses”). Any argument to the contrary is without merit.
Plaintiff’s counsel did not have access to L.P. nor his medical records until the Probate
Court issued the November 9, 2021 order granting limited access. It is nonsensical for
Defendants to argue that Plaintiff should have produced records that Plaintiff could not access,
and Ohio trial courts do not hold litigants to that impossible standard. See Mariner Health Care,
Inc., et al., v. Richard Brunner, et al., 2014 WL 12606687, *4 n. 5 (Ct. of Common Pleas,
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Franklin County) (2014) (a party is not obligated to produce, at the risk of sanctions, documents
that it does not possess or cannot obtain), quoting Shcherbakovkiy v. Da Capo AL Fine, Ltd., 490
F.3d 130, 138 (2d Cir. 2007). For that reason, the Court should deny all relief requested by
Defendants within the Motion to Compel regarding the minor Plaintiff’s medical records.
II. The probate court order permitted a meet and greet of L.P. by defense
counsel only, and not defense counsel’s experts.
Defendant Summa Health’s motion for defense experts to examine L.P. goes beyond the
Probate Court’s order and is thinly disguised attempt to make an end-run around Civ.R. 35. The
Probate Court ordered that “defense counsel in the civil matter to have ‘meet and greet’ not to
last longer than 30 minutes on a date and time agreeable by SCCS. (Ex. 11 ¶ (e)) (emphasis
added). The order does not permit, nor even address, whether defense experts may examine
L.P.. Id. In contrast, Plaintiff specifically sought and obtained the Probate Court’s permission
for his experts to examine L.P.. (Ex. 11 ¶ (a)). It must be noted that experts for the Plaintiffs are
not restricted by Rule 35 in regards to their examinations of the minor Plaintiff.
If defense counsel wishes their experts to examine L.P., then the defense must satisfy the
requirements of Civ.R. 35. In Ohio, “physical and mental-health examinations of a litigating
party may be ordered only when relevant and for good cause shown.” Hageman v. Southwest
Gen. Health Ctr., 119 Ohio St.3d 185, 199, 2008-Ohio3343, ¶ 9 (2008) (emphasis added).
Defendant Summa Health has not moved for an examination under Civ.R. 35 nor made any
attempt at establishing “good cause.” (See Defendant’s Memorandum of Law to the Motion to
Compel, p. 10).
This Court should deny Defendants’ request to allow their experts to examine L.P.
because defense counsel have not moved for an examination under, nor satisfied the
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requirements of, Civ.R.35. Likewise, the Probate Court order did not permit the examination
sought by the defendant. (Ex. 11 ¶ (e)).
Any such motion by Defendants for a Rule 35 examination must establish good cause for
the examination of L.P., and must specify the “time, place, manner, conditions, [and] scope of
the examination.” Civ.R. 35(A). Until such a motion is brought, the Court should deny all relief
requested by Defendants within the Motion to Compel regarding defense expert examination of
L.P.
III. Depositions
Defendant Summa Health’s Motion to Compel raised multiple issues regarding
depositions. Each argument is without merit and should be denied.
a. Defendant Summa Health’s motion to depose “any and all fact witnesses
Plaintiff intends to call to the witness stand at trial” violates the Case
Management Order and invades work-product doctrine codified in Civ.R.
26(B)(4)
The Amended Case Management Order provides that “lists of trial witnesses and trial
exhibits shall be filed with the Court and exchanged between the parties no later than November
22, 2022.” (See Amended Case Management Order attached as Exhibit 6). Despite the clear and
unambiguous edict of this Court’s Order, defense counsel seeks a tactical litigation advantage by
early disclosure of Plaintiff’s trial witnesses. Defendant’s request is contrary to the provisions of
the Amended Case Management Order and should be denied.
Moreover, Defendants have more than sufficient information to determine which
individuals to depose prior to trial. Plaintiff answered Defendants’ Interrogatory No. 21 seeking
identification of “persons who were witnesses to or have knowledge of the acts or injuries
alleged in the Complaint.” (Ex. A to the Motion to Compel). Apparently satisfied with this
answer, Defendants have not moved to compel a further answer to that interrogatory.
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In addition, Defendants request for pretrial disclosure of trial witnesses invades the trial
strategy and mental impressions of Plaintiff’s counsel, which are afforded substantial protection
under Ohio law. See Civ.R 26(B)(4). See, also, Squire, Sanders & Dempsey, L.L.P. v. Givaudan
Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469 (attorney work-product is privileged
information that “includes mental impressions, theories, and legal conclusions. . .”). Plaintiff’s
counsel’s determination of which witnesses to call at trial is a manifestation of trial strategy and
counsel’s mental impressions of witnesses, and, therefore, is attorney work-product afforded near
“absolute” protection. See Stanton v. Univ. Hosps. Health Sys., Inc., 166 Ohio App.3d 758, 763,
853 N.E.2d 343, 346-347, 2006-Ohio-2297, ¶¶ 10-11 (2006) (work product involving “attorney’s
mental impressions, conclusions, opinions, or legal theories . . . enjoys a nearly absolute
immunity and can be discovered only in very rare and extraordinary circumstances.”), citing Cox
v. Admr. U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.) (1994).
Defendants’ written motion and accompanying memorandum of law make no showing or
offer of proof justifying discovery of privileged attorney work-product. (Defendant’s
Memorandum of Law, pp 6, 13). Instead, Defendants merely recite their request “for the
depositions of . . . any and all fact witnesses Plaintiff intends to call to the witness stand at trial.”
(Id.) Defendants’ unsupported assertion cannot satisfy its burden. See In re Special Grand Jury
Investigation, 2019-Ohio-4014 (party seeking discovery of materials covered by work-product
doctrine bears burden of establishing good cause).
Defendant’s request to depose “any and all fact witnesses Plaintiff intends to call to the
witness stand at trial” is without merit and should be denied.
b. Plaintiff has requested deposition dates for Plaintiff Michael Renne
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Plaintiff does not object, and has never objected, to providing Plaintiff Michael Renne for
a deposition. Plaintiff has requested dates for the deposition of Michael Renne and will provide
them to defense counsel. (Ex. 1, p. 3). Because Plaintiff will provide the discovery sought by
Defendants’ motion, this request should be denied without prejudice.
c. Defendant Summa Health’s request that Plaintiff produce third-parties beyond
his control for deposition
Defendants have requested depositions of anyone with whom L.P. has lived since birth.
However, any such person is a third party beyond Plaintiff’s control, and thus Plaintiff has no
authority, or obligation, to produce him/her/them for deposition and cannot provide dates when
he/she/they would be available. Moreover, Defendants cited no authority that Plaintiff has a
discovery obligation, or even an ability, to produce witnesses beyond his control. (Defendants’
Memorandum of law, p. 13).
In addition, Plaintiff does not know the identity of everyone “with whom L.P. has lived
since his birth.” Plaintiff has disclosed all such information, to the extent known, through Olivia
Patterson’s deposition testimony and Plaintiff’s Answer to Interrogatory No. 13. Interrogatory
No. 13 sought “addresses for the last ten (10) years, including the approximate dates of residence
at each address.” Plaintiff cannot produce witnesses beyond his control and Plaintiff has
provided all information known about this matter, thus satisfying our discovery obligations. See
Harlem River Consumers Co-op., Inc., v. Associated Grocers of Harlem, Inc.,, 64 F.R.D. 459,
463 (S.D.N.Y. 1974) (when responding to an interrogatory, “if plaintiff knows of no further
information it is required to so state. If it can only answer partially it should state that its
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answers reflect all the information it has.”).2 Plaintiff has no further information other than what
has been provided to Defendants; thus, Plaintiff satisfied his discovery obligations.
Defendant’s motion to compel third-party deposition testimony is without merit, lacks
authority, and should be denied.
D. Plaintiff properly objected to improper deposition questions that sought
information privileged under R.C. 5153.17 and that sought irrelevant
information beyond the scope of permissible discovery under Civ.R. 26
Defense counsel’s deposition questions were improper and Plaintiff’s objections should
be sustained. Plaintiff’s counsel had an obligation to object and instruct Olivia not to answer
questions that sought confidential information under R.C. 5153.17. R.C. 5153.17 provides for
confidentiality of records and investigations conducted by public children services agencies. See
R.C. 5153.17 (“public children services agency shall prepare and keep written records of
investigations of families, children, and foster homes, and of the care, training, and treatment
afforded children . . .” and “[s]uch records shall be confidential.”). Summit County Children
Services (SCCS) moved for temporary and permanent custody of L.P. and that agency is a
“public children services agency” under the statute. (See Ex. 2 ¶ 2). Thus, SCCS’s records of
investigations and foster homes are confidential and any inquiry by defense counsel into these
topics during Olivia Patterson’s deposition was confidential. See R.C. 5153.17
Defense counsel has implicitly recognized the confidential nature of this information.
Defense counsel previously requested permission to attend at least one closed custody hearing.
However, after being denied permission to attend by Olivia Patterson and L.P.’s guardian,
neither of whom waived their privacy rights, defense counsel withdrew his request. It would be
repugnant to the statutory scheme for defense counsel to obtain confidential information in a
2
“Because the Ohio Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal law
interpreting the federal rule is appropriate and persuasive authority in interpreting a similar Ohio rule.” Felix v.
Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 333, 49 N.E.3d 1224, 2015 Ohio-3430, ¶ 24 (2015).
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backdoor manner through deposition questions to Olivia about what occurred in a previously
confidential proceeding.
Any argument that defense counsel’s questions sought information not protected from
disclosure by the statute is without merit. The following questions and objections evidence
Defendants’ inquiry into confidential topics protected by the statute:
Q: The information we have suggests that your custody of L.P. was
removed temporarily at that time on or about May 23rd, 2019.
Does that sound accurate to you?
A: Yes.
Q: Do you remember the circumstances surrounding that?
Ms. Weinstein: Objection; relevance. And I’ll just instruct you not
to answer.
Mr. Rossi: What is the basis for her not answering?
Ms. Weinstein: She has got pending litigation regarding L.P. and
custody arrangements, and I don’t see the relevance
to this lawsuit regarding your questioning.
Mr. Rossi: Relevance is no basis upon which to instruct a
witness in the State of Ohio not to answer a
question, Lisa, and there is nothing privileged about
this.
Ms. Weinstein: Well, as far as I understand, the litigation is sealed,
and she has got pending litigation currently going. I
did speak about this situation with our local counsel
and the guardian of the estate. And I’ll instruct her
not to answer.
Mr. Rossi: You are not going to let her answer any questions
about his custody?
Ms. Weinstein: About his custody.
Mr. Rossi: And the fact that she – okay. Well, let’s look at the
medical records. I want to be clear here on the
record.
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Ms. Weinstein: Yes.
Mr. Rossi: You are going to instruct her not to answer any of
my questions regarding the custody and the fact that
she lost custody of him; is that correct? Is that what
you are saying?
Ms. Weinstein: That is correct.
(Deposition testimony of Olivia Patterson attached as Exhibit 10 at 120:18 – 122:6).
This line of questioning sought information regarding Olivia Patterson’s custody rights
and related hearings that were initiated by SCCS. This information was confidential and
privileged under the statute.
Moreover, defense counsel was incorrect about Ohio law. During Olivia’s deposition,
defense counsel maintained that relevancy was not a proper objection; he was wrong. Under
Civ.R. 26(B)(1), discovery is not unlimited, and parties may obtain “discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense. . .” Civ.R. 26(B)(1)
(emphasis added). Information is considered irrelevant, and thus not discoverable, when the
“information sought will not reasonably lead to the discovery of admissible evidence.” Tschantz
v. Ferguson, 97 Ohio App. 3d 693, 715, 647 N.E.2d 507, 521 (1994).
Further, under Summit County local rules of court, counsel may instruct a deponent not
to answer a question that seeks irrelevant information; that is not likely to lead to the discovery
of admissible evidence; and counsel has a good faith, reasonable belief that the objection will be
sustained. S.C.C. Rule 17.02(5)(B) (emphasis added).
Here, the information sought was not relevant to any party’s claim or defense and was not
reasonably likely to lead to the discovery of admissible evidence. Olivia Patterson’s parental
rights were terminated by order of the Juvenile Court (Ex. 2) and Olivia Patterson’s claims were
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voluntarily dismissed. Thus, the only claims remaining in this cause of action relate to L.P.’s
damages, not Olivia Patterson’s. Because Olivia Patterson is no longer a Plaintiff and her
parental rights were terminated, defense counsel’s questions were irrelevant and objectionable.
Defendants’ motion to reconvene Olivia Patterson’s deposition is without merit. Defense
counsel’s deposition questions sought confidential information pursuant to R.C. 5153.17, and
neither Defendant Summa Health, nor defense counsel, qualify as an entity or individual who
meets an exception under the statute. See R.C. 5153.17 (“Such records shall be confidential, but,
. . . shall be open to inspection by the agency, direct of job and family services, and the director
of the county department of job and family services, and by other persons upon the written
permission of the executive director.”).
Defendants’ motion to reconvene Olivia Patterson’s deposition should be denied.
IV. Plaintiff’s fully answered Interrogatories 2 and 4 in Defendant Summa
Health’s Second Set of Interrogatories
Defendant Summa Health has moved to compel supplementation to two interrogatories-
Nos. 2 and 4 from Defendant’s Second Set of Interrogatories. (See Defendant’s Memorandum of
Law, p 7).3 However, Plaintiff answered the interrogatories fully and has no further information
to provide.
Defendant Summa Health propounded the following interrogatories and Plaintiff
responded as follows:
“INTERROGATORY NO. 2:
Please identify L.P.’s current residence address, individuals with whom he resides, and
their relationship with him.
3
Although Defendant Summa Health only identified those two answers as deficient, the requested relief is without
limitation. (See Defendant Summa Health’s Memorandum of Law, p 16).
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Answer: Plaintiffs object to Interrogatory No. 2 as irrelevant, not reasonably
calculated to lead to the discovery of admissible evidence, overly broad, vague as to
timing and unduly burdensome.
Without waiving said objections, Plaintiffs state that they do not possess L.P.’s
current residential address.
INTERROGATORY NO. 4:
Does Plaintiff Olivia Patterson have custody or any visitation rights regarding Plaintiff
L.P. Paterson. If so, please describe her custody or visitation schedule.
Answer: Plaintiffs object to Interrogatory No. 4 as irrelevant, not reasonably
calculated to lead to the discovery of admissible evidence, overly broad, vague as to
timing and unduly burdensome.
Without waiving said objections, Plaintiffs state that Olivia Patterson has visitation
rights with L.P.”
(See Plaintiff’s Responses to Defendant Summa Health’s 2nd Set of Interrogatories and
Requests for Production of Documents attached as Exhibit B to the Motion to Compel).
Plaintiff answered the interrogatories fully and to the best of Plaintiff’s knowledge at the
time, thus satisfying his discovery obligations under Civ.R. 33. “Interrogatories are not proper
where the information sought is not within the personal knowledge of the party.” Kelly v.
Nationwide Mut. Ins. Co., 23 Ohio Op.3d 29, 188 N.E.2d 445, quoting Russell v. Lake Shore and
M.S. Ry., 17 Ohio Dec. 435 (1907). When, as is often the case, an answering party does not
possess the information sought, a party may answer that the interrogatory response reflects all
known information. See Harlem River Consumers Co-op., Inc., v. Associated Grocers of
Harlem, Inc.,, 64 F.R.D. 459, 463 (S.D.N.Y. 1974) (when responding to an interrogatory, “if
plaintiff knows of no further information it is required to so state. If it can only answer partially
it should state that its answers reflect all the information it has.”).
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Here, Plaintiff does not have personal knowledge of the information sought b
Preview
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 1 of 66 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO MICHAEL A. RENNE, as Guardian of the ) CASE NO. CV-2020-02-0578 Estate of L.P., a minor. ) ) JUDGE MARY MARGARET ROWLANDS Plaintiff, ) ) PLAINTIFF’S RESPONSE TO vs. ) DEFENDANTS’ MOTION TO COMPEL ) SUMMA HEALTH SYSTEM, et al. ) ) Defendants ) ) NOW COMES the Plaintiff, pursuant to Loc.R. 7.14(A) of the Court of Common Pleas of Summit County, General Division, and hereby requests that this Honorable Court deny Defendant Summa Health System’s Motion to Compel. Among the reasons therefore, Plaintiff submits that Defendant Summa Health seeks confidential information protected from disclosure by R.C. 5153.17 and seeks irrelevant information beyond the scope of Civ.R. 26. In further support, Plaintiff submits as follows: Defendant’s Motion to Compel should be denied because Plaintiff has produced all relevant, non-privileged, and responsive information in Plaintiff’s possession, custody, or control - control being the operative term for this motion. After Plaintiff’s original Complaint was filed, the Probate Court in Summit County terminated former Plaintiff, Olivia Patterson’s parental rights. Subsequently, Olivia Patterson, the minor Plaintiff’s mother, dismissed her claims against defendants. Thereafter, Plaintiff successfully petitioned the Probate Court, which had appointed attorney Michael Renne as the GAL in this matter, to order that the new Guardian for L.P., Summit County Children Services (SCCS), provide access to L.P. and his medical records to the 1 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 2 of 66 parties in this matter. The Probate Court granted that access and ordered SCCS to provide authorizations and other information related to L.P. that Plaintiff did not possess prior thereto. Plaintiff’s counsel explained this, and more, in our letter to counsel for Defendants, Attorney Rossi on February 23, 2022. (See February 23, 2022 Letter from Plaintiff Attorney Lisa Weinstein to defense counsel attached as Exhibit 1). Rather than discuss obtaining the discovery disclosed in our letter, defense counsel has pressed forward with this Motion to Compel. This Court should deny Defendant’s Motion to Compel because Counsel for the Plaintiff has complied with all discovery obligations by producing all non-privileged, relevant records and information in our control. Plaintiff’s counsel has also committed to supplement their discovery responses and produce all non-privileged, relevant records, as they are received in the future. (Ex. 1, p. 2). Moreover, this Court should deny Defendant’s Motion to Compel any documents and/or testimony that is confidential and/or irrelevant because such documents and/or testimony is beyond the scope of Rule 26 of the Ohio Rules of Civil Procedure. In further support, Plaintiff submits this memorandum of law. PROCEDURAL HISTORY AND FACTUAL HISTORY Pregnant mother Olivia Patterson presented to Defendant Summa Health Systems (hereinafter “Defendant Summa Health”) on February 12, 2019, with severe abdominal pain and suspected placental abruption. Despite over four hours of concerning fetal heart tracings and Olivia’s worrisome clinical presentation, delivery of L.P. by cesarean section did not occur until approximately 6:25 a.m. on February 12, 2019. Following delivery, a 50% placental abruption was confirmed. L.P. entered the world in respiratory distress and has subsequently suffered 2 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 3 of 66 global developmental delay caused by his intrapartum hypoxic injury. L.P. was diagnosed with cerebral palsy and will require life-long medical and therapeutic care. Plaintiff filed the original Complaint in this matter on February 12, 2020. At that time, the minor-Plaintiff, L.P, was involved in a custody dispute between his mother, Olivia Patterson and Summit County Children Services (SCCS). The Court of Common Pleas for Summit County, Juvenile Division (Juvenile Court) had previously awarded temporary custody of L.P. to SCCS on May 23, 2019, but Olivia was appealing that decision and seeking to regain full custody of L.P. After an extended process in Juvenile Court, a closed hearing on the issue was held on February 25, 2021, at which time Judge Teodosio terminated Olivia’s parental rights and granted permanent custody of L.P. to SCCS. (See February 25, 2021 Order, to be filed under seal due to confidential information contained therein and, thereafter, attached as Exhibit 2). The Juvenile Court did not allow Mr. Rossi, counsel for Defendants, to attend that closed hearing upon his request. When Mr. Rossi sought permission from Olivia’s counsel in the Juvenile Court matter to attend the hearing, it was denied as well. 1 After the Defendants answered the original Complaint, the parties exchanged written discovery requests so that all relevant and material information and documents could be gathered prior to the start of oral discovery. Despite the complex custody situation, Plaintiff’s counsel remained intent on moving this case forward as much as possible. On April 18, 2020, Plaintiff filed an Application for Appointment of Michael A. Renne as Guardian of L.P.’s Estate in the Probate Court for Summit County so that Mr. Renne could serve as an advocate for L.P.’s interests in this litigation while the custody dispute continued in Juvenile Court. 1 Counsel for Summa Health sought, and then withdrew, a request to attend the February 25, 2021 custody proceedings. (See Email Correspondence from Attorney Rossi attached as Exhibit 3). 3 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 4 of 66 Plaintiff’s counsel served answers to Defendants’ Interrogatories and responses to Defendants’ Request for Production on May 22, 2020. (See Plaintiff’s Answers to Defendants’ written discovery attached to the Motion to Compel as Exhibit A). All relevant information and records were produced in those answers and responses, subject to Plaintiff’s stated objections. At the same time, Plaintiffs were requesting updated records for L.P. through authorizations signed by his mother, Olivia. However, due to the custody dispute that was proceeding at that time with SCCS in the Juvenile Court, the medical care providers of whom Plaintiff’s counsel was aware for L.P. would not honor authorizations for records signed by Olivia Patterson. On May 27, 2020, the Probate Court granted Letters of Guardianship of L.P.’s Estate to Mr. Renne. On August 21, 2020, Plaintiffs filed his Amended Complaint in this matter, adding Mr. Renne as Guardian of L.P.’s Estate. After receiving his Letters of Guardianship and with the Amended Complaint having been filed, Mr. Renne began working with Plaintiff’s counsel to obtain additional information from SCCS regarding L.P. and to obtain L.P.’s records from his medical care providers. However, SCCS refused to provide that information to Mr. Renne or Plaintiff’s counsel and L.P.’s medical care providers refused to provide medical records for L.P. in response to authorizations signed by Mr. Renne as Guardian of the Estate. On August 26, 2020, Plaintiff supplemented his production to Defendants, enclosing neurological scans for L.P. On September 9, 2020, Plaintiff supplemented his production to Defendants, enclosing records from the Lakemore Police & Fire Department for Olivia Patterson. On September 10, 2020, Mr. Rossi, counsel for Defendants, requested by letter updated medical records for L.P. (See letter of September 10, 2020, attached hereto as Exhibit 4). Plaintiffs continued to work with Mr. Renne to request information regarding L.P.’s medical 4 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 5 of 66 status and records related to his medical care from SCCS, but all attempts were rejected by that agency. On November 17, 2020, Mr. Rossi requested by letter dates for the deposition of Olivia Patterson, as well as an opportunity to “see L.P., if at all possible” which could proceed by Zoom or another virtual source. (See letter of November 17, 2020, attached hereto as Exhibit 5). Over the next several months, the depositions of Olivia Patterson and the Defendant physicians were set and continued multiple times due to the Covid-19 pandemic. It was during this time that the Juvenile Court on February 25, 2021 terminated Olivia Patterson’s parental rights and granted permanent custody of L.P. to SCCS. Upon submission of an Agreed Motion by the parties, the Court entered an Amended Case Management Order in this matter on March 2, 2021 that remains in effect at this time. (See 3/2/21 Order attached as Exhibit 6). On August 3, 2021, Mr. Rossi submitted his Second Interrogatories and Second Request for Production upon Plaintiffs by letter. Mr. Rossi also requested dates for Olivia Patterson’s deposition, a Zoom meet and greet with L.P., and supplementation of L.P.’s medical records through that letter. (See letter of August 3, 2021, attached hereto as Exhibit 7). On August 13, 2021, Lisa Weinstein, counsel for Plaintiff, responded to Mr. Rossi, informing him of the efforts she had made to obtain L.P.’s records and authorizations for the same from SCCS through Olivia Patterson and Mr. Renne. (See letter of August 13, 2021, attached hereto as Exhibit 8). Ms. Weinstein also informed Mr. Rossi that Olivia was appealing the termination of her parental rights and that Ms. Weinstein did not believe that SCCS would allow Mr. Rossi to record any Zoom meeting with L.P. since L.P. was a ward of theirs. (Ex. 8). Plaintiffs then served answers to Defendants’ Second Interrogatories and responses to Defendants’ Second Request for Production, which focused on the custody issue, on September 5 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 6 of 66 13, 2021. (See Plaintiff’s Answers to Defendants’ Second set of written discovery attached to the Motion to Compel as Exhibit B). On October 5, 2021, Mr. Rossi then wrote to Ms. Weinstein seeking supplementation of Plaintiff’s Answers to Defendants’ Second set of written discovery. (See letter of October 5, 2020, attached to Defendants’ Motion to Compel as Exhibit D). On October 11, 2021, Ms. Weinstein responded to Mr. Rossi by letter and supplemented Plaintiff’s answers with additional information that had been obtained since the prior answers to Defendants’ Second Interrogatories and responses to Defendants’ Second Request for Production on September 13, 2021. (See letter of October 11, 2021, attached hereto as Exhibit 9) Olivia Patterson was presented for her deposition on October 12, 2021. (See transcript of Olivia Patterson’s deposition attached hereto as Exhibit 10). During her deposition, Mr. Rossi questioned Olivia, among other things, regarding Plaintiff’s previous answers to written discovery, the status of her custody dispute with SCCS, and her knowledge of L.P.’s then current medical condition. Ms. Weinstein represented Olivia Patterson during that deposition and made appropriate and consistent objections to protect the confidential information regarding Olivia’s then pending custody dispute with SCCS regarding L.P. and to prevent Mr. Rossi from inquiring as to lines of questioning that were clearly irrelevant to the claims and defenses in this matter. Otherwise, Olivia provided all the information that she possessed regarding L.P. and his medical condition, which is the primary issue in this case, during her deposition. (Ex. 10). On October 18, 2021, Mr. Rossi sent a letter to Ms. Weinstein requesting the production of L.P.’s updated medical records and the provision of the confidential information he had requested, and which Plaintiff’s counsel objected to, in Olivia’s deposition. (See letter of October 18, 2021, attached to the Motion to Compel as Exhibit E). In short, Mr. Rossi’s letter requested 6 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 7 of 66 information and documents that he already knew Plaintiff’s counsel was incapable of providing per his prior discussions with Ms. Weinstein by phone and during Olivia Patterson’s deposition. On November 9, 2021, since all efforts and multiple attempts to obtain cooperation from SCCS in order to obtain information regarding L.P.’s medical care providers and authorizations for L.P.’s medical records had failed, Mr. Renne obtained an Order from the Probate Court in Summit County compelling SCCS to provide such information for this litigation. (See Order of November 9, 2021, attached hereto as Exhibit 11). Mr. Renne then submitted the Order to a corporate representative for SCCS and requested compliance. On November 18, 2021, Ms. Weinstein responded to Mr. Rossi once again explaining Plaintiff’s inability to provide certain information and documents and explaining why Plaintiff was standing on his objections regarding the confidential information involved in Olivia’s custody dispute with SCCS. (See letter of October 18, 2021, attached to the Motion to Compel as Exhibit F). Ms. Weinstein also informed Mr. Rossi of the Probate Court’s November 9, 2021 Order and her expectation that SCCS would comply with that Order and provide the requested information and documents. (Ex. F to Motion to Compel). On January 27, 2022, Mr. Rossi sent a letter to Ms. Weinstein that rehashed the issues from his October 18, 2021 letter. (See letter of January 27, 2022 attached to the Motion to Compel as Exhibit G). Through this letter, Mr. Rossi also brought up for the first time a request that defense experts, without specifically naming them, be allowed to examine L.P. (Ex. G. to the Motion to Compel). On February 1, 2022, Edward Aucoin, counsel for Plaintiff, informed Mr. Rossi that Plaintiff would respond to the January 27, 2022 letter. (See email of February 1, 2022 attached to the Motion to Compel as Exhibit H). 7 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 8 of 66 While Plaintiff was preparing a response to Mr. Rossi’s January 27, 2022 letter, Defendants filed their Motion to Compel on February 23, 2022. On that same day, Plaintiff responded to Mr. Rossi’s January 27, 2022 letter explaining his position on all disputed discovery issues. (See letter of February 23, 2022, attached hereto as Exhibit 1). Through his February 23, 2022 letter, Plaintiff identified all medical care providers and education providers that were recently identified by SCCS pursuant to the Probate Court’ order. (Ex. 1, pp. 1-2). ARGUMENT Plaintiff’s counsel has been attempting to obtain information regarding the minor Plaintiff, L.P.’s custodial situation, his medical treaters and facilities that have provided care, and other information on him relevant to this action since they were retained several years ago. All attempts had been unfruitful, as detailed above, when SCCS refused to cooperate with Plaintiff’s counsel during the pendency of the custody dispute with Olivia Patterson. After Plaintiff’s Petition to Access L.P.’s records was granted and Order regarding the same was entered on November 9, 2021, Plaintiff’s counsel has diligently sought discoverable information from SCCS. Once that information was received from SCCS, Plaintiff identified L.P.’s medical providers specializing in neurology, gastroenterology, speech therapy, and physical therapy, among other disciplines, and provided that information to defense counsel. (Ex. 1, p. 1). Plaintiff’s counsel also identified and disclosed L.P.’s provider of early intervention services and IEP services. (Ex. 1, p. 1). Finally, now that SCCS has responded to the Probate Court’s order, Plaintiff’s counsel has agreed to produce all non-privileged, relevant, and responsive records upon receipt to Defendants. (Ex. 1, pp. 1-2). As for Plaintiff’s objections to Defendants’ written discovery and questions to Olivia Patterson during her discovery deposition regarding the SCCS investigation and the Juvenile 8 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 9 of 66 Court proceedings regarding that investigation to determine L.P.’s custody, Plaintiff maintains that such information and related documents are statutorily protected as confidential, are beyond the scope of permissible discovery under Civ.R. 26, and seeks information inconsistent with the Case Management Order. Each request for such information within the Motion to Compel is without merit and therefore should be denied. I. Plaintiff L.P.’s medical records and bills Defendant Summa Health has moved for an order producing L.P.’s medical records for “treatment after December 2019.” This request is an implicit admission that Plaintiff has already produced relevant medical records and bills - we agree. Specifically, Plaintiff has produced relevant records for Olivia Patterson from Summa Physicians Medical Group and Summa Health System – Akron. Plaintiff has also produced relevant records for L.P. from Summa Health System – Akron and Akron Children’s Hospital. These records detail the medical care that was provided by defendants in this matter, and these records detail L.P.’s neonatal course following his traumatic birth. As detailed above, Plaintiff’s counsel was stymied from requesting further medical records because the identity of those providers was beyond Plaintiff’s personal knowledge and control. While in the custody of SCCS, the identity of L.P.’s care providers was confidential. See R.C. 5153.17 (“public children services agency shall prepare and keep written records . . . of the care, training, and treatment afforded children . . .” and “[s]uch records shall be confidential.”). Plaintiff, and not Defendant Summa Health, sought relief by petitioning the Probate Court for certain information regarding L.P. from SCCS. While Defendant was well aware of Plaintiff’s prior attempts to obtain such information from SCCS and provide it to Defendant, 9 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 10 of 66 defense counsel did not bring such a Petition before this Court, the Probate Court, or the Juvenile Court. Defendants did not use any discovery device, including subpoena, to discover the information directly from SCCS. Rather, defense counsel simply demanded that Plaintiff produce the records after they were aware that Plaintiff could not at that time. In fact, as of the date of filing this Brief in Opposition, defense counsel have not yet even submitted any subpoenas to the health care providers that Plaintiff’s disclosed to them on February 23, 2022, even though they claim prejudice from not having those records. Rather than avail themselves of the usual discovery tools provided under the Ohio Rules of Civil Procedure to obtain those records, Defendants instead persist with their Motion to Compel regarding that issue. Per the Probate Court, Plaintiff may now access and, upon receipt, subsequently disclose, “all medical care that L.P. has received since his birth,” “all educational institutions and social services agencies . . . L.P. has received [services] since his birth,” and “execute any medical and/or education/social service authorizations . . . for L.P.’s records throughout the pendency of the civil matter.” (Ex. 11). Per Plaintiff’s counsel’s correspondence with Attorney Rossi dated February 23, 2022, Plaintiff’s counsel has requested updated records and has agreed to produce any non-privileged, relevant, and responsive records to defense counsel. (Ex. 1 at p. 1). As such, Plaintiff’s counsel’s position satisfies our discovery obligations. See Civ.R.26(E) (“Supplementation of Responses”). Any argument to the contrary is without merit. Plaintiff’s counsel did not have access to L.P. nor his medical records until the Probate Court issued the November 9, 2021 order granting limited access. It is nonsensical for Defendants to argue that Plaintiff should have produced records that Plaintiff could not access, and Ohio trial courts do not hold litigants to that impossible standard. See Mariner Health Care, Inc., et al., v. Richard Brunner, et al., 2014 WL 12606687, *4 n. 5 (Ct. of Common Pleas, 10 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 11 of 66 Franklin County) (2014) (a party is not obligated to produce, at the risk of sanctions, documents that it does not possess or cannot obtain), quoting Shcherbakovkiy v. Da Capo AL Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007). For that reason, the Court should deny all relief requested by Defendants within the Motion to Compel regarding the minor Plaintiff’s medical records. II. The probate court order permitted a meet and greet of L.P. by defense counsel only, and not defense counsel’s experts. Defendant Summa Health’s motion for defense experts to examine L.P. goes beyond the Probate Court’s order and is thinly disguised attempt to make an end-run around Civ.R. 35. The Probate Court ordered that “defense counsel in the civil matter to have ‘meet and greet’ not to last longer than 30 minutes on a date and time agreeable by SCCS. (Ex. 11 ¶ (e)) (emphasis added). The order does not permit, nor even address, whether defense experts may examine L.P.. Id. In contrast, Plaintiff specifically sought and obtained the Probate Court’s permission for his experts to examine L.P.. (Ex. 11 ¶ (a)). It must be noted that experts for the Plaintiffs are not restricted by Rule 35 in regards to their examinations of the minor Plaintiff. If defense counsel wishes their experts to examine L.P., then the defense must satisfy the requirements of Civ.R. 35. In Ohio, “physical and mental-health examinations of a litigating party may be ordered only when relevant and for good cause shown.” Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 199, 2008-Ohio3343, ¶ 9 (2008) (emphasis added). Defendant Summa Health has not moved for an examination under Civ.R. 35 nor made any attempt at establishing “good cause.” (See Defendant’s Memorandum of Law to the Motion to Compel, p. 10). This Court should deny Defendants’ request to allow their experts to examine L.P. because defense counsel have not moved for an examination under, nor satisfied the 11 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 12 of 66 requirements of, Civ.R.35. Likewise, the Probate Court order did not permit the examination sought by the defendant. (Ex. 11 ¶ (e)). Any such motion by Defendants for a Rule 35 examination must establish good cause for the examination of L.P., and must specify the “time, place, manner, conditions, [and] scope of the examination.” Civ.R. 35(A). Until such a motion is brought, the Court should deny all relief requested by Defendants within the Motion to Compel regarding defense expert examination of L.P. III. Depositions Defendant Summa Health’s Motion to Compel raised multiple issues regarding depositions. Each argument is without merit and should be denied. a. Defendant Summa Health’s motion to depose “any and all fact witnesses Plaintiff intends to call to the witness stand at trial” violates the Case Management Order and invades work-product doctrine codified in Civ.R. 26(B)(4) The Amended Case Management Order provides that “lists of trial witnesses and trial exhibits shall be filed with the Court and exchanged between the parties no later than November 22, 2022.” (See Amended Case Management Order attached as Exhibit 6). Despite the clear and unambiguous edict of this Court’s Order, defense counsel seeks a tactical litigation advantage by early disclosure of Plaintiff’s trial witnesses. Defendant’s request is contrary to the provisions of the Amended Case Management Order and should be denied. Moreover, Defendants have more than sufficient information to determine which individuals to depose prior to trial. Plaintiff answered Defendants’ Interrogatory No. 21 seeking identification of “persons who were witnesses to or have knowledge of the acts or injuries alleged in the Complaint.” (Ex. A to the Motion to Compel). Apparently satisfied with this answer, Defendants have not moved to compel a further answer to that interrogatory. 12 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 13 of 66 In addition, Defendants request for pretrial disclosure of trial witnesses invades the trial strategy and mental impressions of Plaintiff’s counsel, which are afforded substantial protection under Ohio law. See Civ.R 26(B)(4). See, also, Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469 (attorney work-product is privileged information that “includes mental impressions, theories, and legal conclusions. . .”). Plaintiff’s counsel’s determination of which witnesses to call at trial is a manifestation of trial strategy and counsel’s mental impressions of witnesses, and, therefore, is attorney work-product afforded near “absolute” protection. See Stanton v. Univ. Hosps. Health Sys., Inc., 166 Ohio App.3d 758, 763, 853 N.E.2d 343, 346-347, 2006-Ohio-2297, ¶¶ 10-11 (2006) (work product involving “attorney’s mental impressions, conclusions, opinions, or legal theories . . . enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.”), citing Cox v. Admr. U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.) (1994). Defendants’ written motion and accompanying memorandum of law make no showing or offer of proof justifying discovery of privileged attorney work-product. (Defendant’s Memorandum of Law, pp 6, 13). Instead, Defendants merely recite their request “for the depositions of . . . any and all fact witnesses Plaintiff intends to call to the witness stand at trial.” (Id.) Defendants’ unsupported assertion cannot satisfy its burden. See In re Special Grand Jury Investigation, 2019-Ohio-4014 (party seeking discovery of materials covered by work-product doctrine bears burden of establishing good cause). Defendant’s request to depose “any and all fact witnesses Plaintiff intends to call to the witness stand at trial” is without merit and should be denied. b. Plaintiff has requested deposition dates for Plaintiff Michael Renne 13 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 14 of 66 Plaintiff does not object, and has never objected, to providing Plaintiff Michael Renne for a deposition. Plaintiff has requested dates for the deposition of Michael Renne and will provide them to defense counsel. (Ex. 1, p. 3). Because Plaintiff will provide the discovery sought by Defendants’ motion, this request should be denied without prejudice. c. Defendant Summa Health’s request that Plaintiff produce third-parties beyond his control for deposition Defendants have requested depositions of anyone with whom L.P. has lived since birth. However, any such person is a third party beyond Plaintiff’s control, and thus Plaintiff has no authority, or obligation, to produce him/her/them for deposition and cannot provide dates when he/she/they would be available. Moreover, Defendants cited no authority that Plaintiff has a discovery obligation, or even an ability, to produce witnesses beyond his control. (Defendants’ Memorandum of law, p. 13). In addition, Plaintiff does not know the identity of everyone “with whom L.P. has lived since his birth.” Plaintiff has disclosed all such information, to the extent known, through Olivia Patterson’s deposition testimony and Plaintiff’s Answer to Interrogatory No. 13. Interrogatory No. 13 sought “addresses for the last ten (10) years, including the approximate dates of residence at each address.” Plaintiff cannot produce witnesses beyond his control and Plaintiff has provided all information known about this matter, thus satisfying our discovery obligations. See Harlem River Consumers Co-op., Inc., v. Associated Grocers of Harlem, Inc.,, 64 F.R.D. 459, 463 (S.D.N.Y. 1974) (when responding to an interrogatory, “if plaintiff knows of no further information it is required to so state. If it can only answer partially it should state that its 14 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 15 of 66 answers reflect all the information it has.”).2 Plaintiff has no further information other than what has been provided to Defendants; thus, Plaintiff satisfied his discovery obligations. Defendant’s motion to compel third-party deposition testimony is without merit, lacks authority, and should be denied. D. Plaintiff properly objected to improper deposition questions that sought information privileged under R.C. 5153.17 and that sought irrelevant information beyond the scope of permissible discovery under Civ.R. 26 Defense counsel’s deposition questions were improper and Plaintiff’s objections should be sustained. Plaintiff’s counsel had an obligation to object and instruct Olivia not to answer questions that sought confidential information under R.C. 5153.17. R.C. 5153.17 provides for confidentiality of records and investigations conducted by public children services agencies. See R.C. 5153.17 (“public children services agency shall prepare and keep written records of investigations of families, children, and foster homes, and of the care, training, and treatment afforded children . . .” and “[s]uch records shall be confidential.”). Summit County Children Services (SCCS) moved for temporary and permanent custody of L.P. and that agency is a “public children services agency” under the statute. (See Ex. 2 ¶ 2). Thus, SCCS’s records of investigations and foster homes are confidential and any inquiry by defense counsel into these topics during Olivia Patterson’s deposition was confidential. See R.C. 5153.17 Defense counsel has implicitly recognized the confidential nature of this information. Defense counsel previously requested permission to attend at least one closed custody hearing. However, after being denied permission to attend by Olivia Patterson and L.P.’s guardian, neither of whom waived their privacy rights, defense counsel withdrew his request. It would be repugnant to the statutory scheme for defense counsel to obtain confidential information in a 2 “Because the Ohio Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal law interpreting the federal rule is appropriate and persuasive authority in interpreting a similar Ohio rule.” Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 333, 49 N.E.3d 1224, 2015 Ohio-3430, ¶ 24 (2015). 15 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 16 of 66 backdoor manner through deposition questions to Olivia about what occurred in a previously confidential proceeding. Any argument that defense counsel’s questions sought information not protected from disclosure by the statute is without merit. The following questions and objections evidence Defendants’ inquiry into confidential topics protected by the statute: Q: The information we have suggests that your custody of L.P. was removed temporarily at that time on or about May 23rd, 2019. Does that sound accurate to you? A: Yes. Q: Do you remember the circumstances surrounding that? Ms. Weinstein: Objection; relevance. And I’ll just instruct you not to answer. Mr. Rossi: What is the basis for her not answering? Ms. Weinstein: She has got pending litigation regarding L.P. and custody arrangements, and I don’t see the relevance to this lawsuit regarding your questioning. Mr. Rossi: Relevance is no basis upon which to instruct a witness in the State of Ohio not to answer a question, Lisa, and there is nothing privileged about this. Ms. Weinstein: Well, as far as I understand, the litigation is sealed, and she has got pending litigation currently going. I did speak about this situation with our local counsel and the guardian of the estate. And I’ll instruct her not to answer. Mr. Rossi: You are not going to let her answer any questions about his custody? Ms. Weinstein: About his custody. Mr. Rossi: And the fact that she – okay. Well, let’s look at the medical records. I want to be clear here on the record. 16 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 17 of 66 Ms. Weinstein: Yes. Mr. Rossi: You are going to instruct her not to answer any of my questions regarding the custody and the fact that she lost custody of him; is that correct? Is that what you are saying? Ms. Weinstein: That is correct. (Deposition testimony of Olivia Patterson attached as Exhibit 10 at 120:18 – 122:6). This line of questioning sought information regarding Olivia Patterson’s custody rights and related hearings that were initiated by SCCS. This information was confidential and privileged under the statute. Moreover, defense counsel was incorrect about Ohio law. During Olivia’s deposition, defense counsel maintained that relevancy was not a proper objection; he was wrong. Under Civ.R. 26(B)(1), discovery is not unlimited, and parties may obtain “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . .” Civ.R. 26(B)(1) (emphasis added). Information is considered irrelevant, and thus not discoverable, when the “information sought will not reasonably lead to the discovery of admissible evidence.” Tschantz v. Ferguson, 97 Ohio App. 3d 693, 715, 647 N.E.2d 507, 521 (1994). Further, under Summit County local rules of court, counsel may instruct a deponent not to answer a question that seeks irrelevant information; that is not likely to lead to the discovery of admissible evidence; and counsel has a good faith, reasonable belief that the objection will be sustained. S.C.C. Rule 17.02(5)(B) (emphasis added). Here, the information sought was not relevant to any party’s claim or defense and was not reasonably likely to lead to the discovery of admissible evidence. Olivia Patterson’s parental rights were terminated by order of the Juvenile Court (Ex. 2) and Olivia Patterson’s claims were 17 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 18 of 66 voluntarily dismissed. Thus, the only claims remaining in this cause of action relate to L.P.’s damages, not Olivia Patterson’s. Because Olivia Patterson is no longer a Plaintiff and her parental rights were terminated, defense counsel’s questions were irrelevant and objectionable. Defendants’ motion to reconvene Olivia Patterson’s deposition is without merit. Defense counsel’s deposition questions sought confidential information pursuant to R.C. 5153.17, and neither Defendant Summa Health, nor defense counsel, qualify as an entity or individual who meets an exception under the statute. See R.C. 5153.17 (“Such records shall be confidential, but, . . . shall be open to inspection by the agency, direct of job and family services, and the director of the county department of job and family services, and by other persons upon the written permission of the executive director.”). Defendants’ motion to reconvene Olivia Patterson’s deposition should be denied. IV. Plaintiff’s fully answered Interrogatories 2 and 4 in Defendant Summa Health’s Second Set of Interrogatories Defendant Summa Health has moved to compel supplementation to two interrogatories- Nos. 2 and 4 from Defendant’s Second Set of Interrogatories. (See Defendant’s Memorandum of Law, p 7).3 However, Plaintiff answered the interrogatories fully and has no further information to provide. Defendant Summa Health propounded the following interrogatories and Plaintiff responded as follows: “INTERROGATORY NO. 2: Please identify L.P.’s current residence address, individuals with whom he resides, and their relationship with him. 3 Although Defendant Summa Health only identified those two answers as deficient, the requested relief is without limitation. (See Defendant Summa Health’s Memorandum of Law, p 16). 18 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 19 of 66 Answer: Plaintiffs object to Interrogatory No. 2 as irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, overly broad, vague as to timing and unduly burdensome. Without waiving said objections, Plaintiffs state that they do not possess L.P.’s current residential address. INTERROGATORY NO. 4: Does Plaintiff Olivia Patterson have custody or any visitation rights regarding Plaintiff L.P. Paterson. If so, please describe her custody or visitation schedule. Answer: Plaintiffs object to Interrogatory No. 4 as irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, overly broad, vague as to timing and unduly burdensome. Without waiving said objections, Plaintiffs state that Olivia Patterson has visitation rights with L.P.” (See Plaintiff’s Responses to Defendant Summa Health’s 2nd Set of Interrogatories and Requests for Production of Documents attached as Exhibit B to the Motion to Compel). Plaintiff answered the interrogatories fully and to the best of Plaintiff’s knowledge at the time, thus satisfying his discovery obligations under Civ.R. 33. “Interrogatories are not proper where the information sought is not within the personal knowledge of the party.” Kelly v. Nationwide Mut. Ins. Co., 23 Ohio Op.3d 29, 188 N.E.2d 445, quoting Russell v. Lake Shore and M.S. Ry., 17 Ohio Dec. 435 (1907). When, as is often the case, an answering party does not possess the information sought, a party may answer that the interrogatory response reflects all known information. See Harlem River Consumers Co-op., Inc., v. Associated Grocers of Harlem, Inc.,, 64 F.R.D. 459, 463 (S.D.N.Y. 1974) (when responding to an interrogatory, “if plaintiff knows of no further information it is required to so state. If it can only answer partially it should state that its answers reflect all the information it has.”). 19 Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/09/2022 18:42:10 PM RESP Page 20 of 66 Here, Plaintiff does not have personal knowledge of the information sought b