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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082
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COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
CIVIL DIVISION
APF CRE ILLC, ET AL.,
Plaintiffs, CASE NO. 20CV-7082
Vv. JUDGE KIM BROWN
TEHRAH HOSPITALITY LLC, MAGISTRATE CORDLE
ET AL.,
Defendants.
Magistrate’s Order:
1 Overview
On July 22, 2022, the court granted summary judgment in favor of Plaintiffs APF-
CRE I LLC and APX-CPX I LLC (together, the “Lenders”) and against Defendants Abhijit
and Bhavna Vasanis (together, the “Borrowers”) on liability only. At the same time, the court
explained that discovery on damages, including whether the security at issue was sold in a
commercially-reasonable manner, would be allowed.
Pursuant to Civil Rule 53 and Local Rule 99.02, this matter was referred to the
undersigned Magistrate for a damages hearing. See July 25, 2022 Order of Reference. The
damages hearing has been continued three times to permit time for discovery; it is currently
scheduled for October 3 and 4, 2023. As explained below, that hearing is VACATED.
2. Motion to Compel
On March 24, 2023, the Borrowers filed a motion to compel discovery and to impose
sanctions. In it, they essentially contended that the Lenders have slow-walked production
of documents and failed to produce a privilege log, even though many of the documents
produced contained redactions. The Lenders filed a motion in opposition, and the
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Borrowers filed a reply in further support, on April 7 and 19, respectively. The Lenders
countered that they were producing documents on a rolling basis, though they admittedly
secured—or simply took—numerous deadline extensions. They further countered they
intended to produce a privilege log after all documents were produced. The Borrowers
responded that the privilege log and certain discovery were still outstanding.
On April 25, the Lenders filed a motion to file a sur-reply, along with a copy of the
proposed sur-reply. That motion was granted. In the sur-reply, the Lenders represented
that their rolling discovery is basically routine supplementation of discovery and that, at the
same time the motion to file sur-reply was filed, they produced a privilege log. They also
objected to certain categories of documents demanded by the Borrowers. In doing so, the
Lenders repeatedly refer to the Borrowers’ “extremely broad and largely irrelevant discovery
demands.”
3. Order to Compel
On April 26, the undersigned Magistrate granted the motion to compel. In doing so,
it was explained that the Borrowers’ discovery demands are proportional to the needs of the
case and that the discovery demands are relevant to damages and defenses. See Civ.R.
26(B)(1). The Lenders’ characterization of its discovery production as routine
supplementation was rejected. Orders were issued to ensure the expedient disclosure of all
outstanding discovery, while affording a final safeguard to the Lenders in case they
identified any new defense to disclosure. Specifically, it was ordered:
All responses to the Borrowers’ First Combined Set of Discovery Requests,
from August 29, 2022, are due no later than May 19, 2023. Those documents
shall include all documents identified in the Borrowers’ reply brief, filed April
19, 2023, unless—and only to the extent—that (1) the Lenders file a motion for
a protective order, identifying the legal and factual bases for
withholding the documents, and (2) delivering the responsive documents
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to chambers for an in-camera inspection. Such motions shall be filed, and
such documents shall be delivered, no later than May 19, 2023. (Emphasis
added.)
4. Motion for Protective Order
4-1 The Motion
On May 19, the Lenders filed a motion for protective order and delivered an
astonishing 25 bankers’ boxes of documents to chambers—ostensibly for in-camera review.
In addition, the Lenders submitted a 493-page “privilege log.” In the motion, the Lenders
assert they properly withheld two categories of documents: (1) “proprietary and irrelevant”
documents; and (2) documents protected by attorney-client privilege or the attorney-work-
product doctrine.
4.2 “Proprietary” and “Irrelevant” Documents
To facilitate discovery, and to address the Lenders’ concern about the use and further
disclosure of certain sensitive documents, the Borrowers sensibly suggested the parties
adopt the standard protective order available from the U.S. District Court, Southern District
of Ohio on its website. The Lenders refused. They attempt to defend that refusal by noting
there’s no rule or order requiring parties in this court to adopt the federal court’s form order.
And they argue they were not required to negotiate any protective order to facilitate the
timely disclosure of the documents because the court invited them to file a motion for
protective order in the Order to Compel.
As an initial matter, and as counsel for the Borrowers aptly summarized it, the
proposed order “isn’t a protective order but is a wish list of things Plaintiff would like to see
the Court find to absolve it of any and all wrongdoing [].” Further, it is routine discovery
practice for counsel to agree on a protective order to facilitate the exchange of sensitive
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documents while limiting their use and further disclosure. Usually, attorneys practicing in
this court use the federal court’s form order. And they do so even in the absence of some
rule or order explicitly requiring them to do so. After all, counsel are generally required to
comply with discovery rules and orders and to attempt to resolve discovery disputes
extrajudicially. Adoption of protective orders to limit the use and further disclosure of
confidential or proprietary documents is a perfunctory mechanism to allow the exchange of
discoverable, but otherwise private, documents. The Lenders unreasonably refused to adopt
one. The excuse that the court had invited the Lenders to apply for a protective order helps
them none, as the protective order contemplated by the Order to Compel plainly related to
substantive matters.
The Lenders’ refusal to enter into an agreed protective order appears to be nothing
short of a delay tactic and appears to constitute yet another refusal to abide by the court’s
decisions. The court gets it: the Lenders do not agree that the Borrowers are contractually
allowed to assert the defense that the sale of the assets was not accomplished in a
ommercially-reasonable manner, and the Lenders do not agree the Borrowers are entitled
to all the discovery they've demanded. But the court has already ruled on those issues, and
those rulings stand unless and until they are reversed on appeal. Therefore, the court is not
going to wade through 25 bankers’ boxes of documents and individually rule on their
discoverability when the court has already ordered the Lenders to turn over the documents
and where the Lenders did not—as they were ordered to do—identify the legal and factual
basis for withholding each document.
To the extent the Lenders identified “irrelevant” materials, the court assumes they
meant “unresponsive.” In which case, it’s not clear why the Lenders need a protective order
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in that regard.
4.3. Privilege and Work-Product Documents
Among the boxes of documents, and referenced on the “privilege log,” are also
thousands of documents the Lenders claim to be protected by attorney-client privilege or
the attorney-work-product doctrine. The Lenders were ordered to identify the legal and
factual basis for withholding each document. They did not. Instead, they expect the court
to sort through the documents, evaluate each without citation to law or the aid of argument,
and determine whether the documents must be disclosed. That is not going to happen.
Additionally, the “privilege log” produced by the Lenders does not comply with Civ.R.
26(B)(8)(a). That rule states:
When information subject to discovery is withheld on a claim that it is
privileged or subject to protection as trial preparation materials, the claim
shall be made expressly and shall be supported by a description of the
nature of the documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim.
(Emphasis added.)
“Merely stating a broad and generalized claim of attorney-client privilege for all responsive
communications that are allegedly privileged is insufficient.” Drummond v. State Farm
Mutual Auto Ins. Co., 10th Dist. No. 22AP-100, 2023-Ohio-283, 206 N.E.3d 283, 125. A
proper privilege log sets forth “facts * * * to support a finding that * * * the documents
contain communications with legal counsel seeking legal advice” or that the documents were
prepared in anticipation of trial and contain mental impressions, theories, or legal
conclusions of an attorney or those working on behalf of the attorney. Id. at {1 27, 35-36.
Because the Lenders’ failed to timely produce a privilege log compliant with Civ.R.
26, the Borrowers were unable to contest their privilege claims. The Lenders’ solution was
to drop thousands of documents into the court’s lap with a shrug and a vexatious suggestion
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that the court figure it out on its own, while failing to comply with the court’s order to provide
the legal and factual basis for withholding each document.
4.4 Sanctions
The Lenders’ failure to consider an agreed protective order, failure to provide a
proper privilege log, and failure to comply with the court order to identify the legal and
factual basis for withholding each document culminated in the Lenders’ delivery of 25
bankers’ boxes of documents to chambers purportedly for in-camera review. The prospect
of delivering that volume of materials to chambers should have alerted the Lenders and their
counsel that their chosen tack was ill-considered. Sanctions are appropriate. The Lenders
and their counsel shall reimburse the Borrowers for their attorney fees and costs incurred to
respond to the motion for protective order. Future discovery abuses will result in additional
and more severe sanctions.
5 Orders
The motion for protective order is DENIED.
The Lenders and their counsel shall cooperate with the Borrowers’ counsel to
negotiate a protective order to facilitate the Lenders’ disclosure of the documents it claims
are confidential and proprietary. That cooperation shall commence immediately upon
receipt of this Order. Counsel shall submit an agreed protective order to Judge Brown no
later than September 12, 2023.
Within two weeks of Judge Brown’s approval of the protective order, the
Lenders shall provide all responsive documents it claims are confidential or proprietary to
counsel for the Borrowers.
No later than October 3, 2023, the Lenders shall produce to the Borrowers a
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revised privilege log that complies with Civ.R. 26.
No later than September 22, 2023, counsel for the Lenders shall cause the 25
bankers’ boxes of documents delivered to chambers to be picked up and removed from
chambers. Counsel shall work with the undersigned Magistrate’s secretary to schedule a
time for pickup and removal.
The October 3 and 4, 2023 damages hearing is VACATED. Counsel shall work with
Judge Brown’s staff attorney to schedule a new hearing date.
SO ORDERED.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082
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Franklin County Court of Common Pleas
Date: 09-05-2023
Case Title: APF CREILLC ET AL -VS- TEHRAH HOSPITALITY LLC ET AL
Case Number: 20CV007082
Type: MAGISTRATE ORDER
So Ordered
ee
Sa meer
/s/ Magistrate Jennifer R. Cordle
Electronically signed on 2023-Sep-05 page 8 of 8
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082
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Court Disposition
Case Number: 20CV007082
Case Style: APF CRE| LLC ET AL -VS- TEHRAH HOSPITALITY
LLC ET AL
Motion Tie Off Information:
1. Motion CMS Document Id: 20CV0070822023-06-0799980000
Document Title: 06-07-2023-MOTION - PLAINTIFF: APF CRE |
LLC - TO SET TELEPHONIC HEARING
Disposition: MOTION IS MOOT
2. Motion CMS Document Id: 20CV0070822023-05- 1999980000
Document Title: 05-19-2023-MOTION FOR PROTECTIVE ORDER
- PLAINTIFF: APF CRE | LLC
Disposition: MOTION DENIED
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - AQ COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CIVIL DIVISION APF CRE ILLC, ET AL., Plaintiffs, CASE NO. 20CV-7082 Vv. JUDGE KIM BROWN TEHRAH HOSPITALITY LLC, MAGISTRATE CORDLE ET AL., Defendants. Magistrate’s Order: 1 Overview On July 22, 2022, the court granted summary judgment in favor of Plaintiffs APF- CRE I LLC and APX-CPX I LLC (together, the “Lenders”) and against Defendants Abhijit and Bhavna Vasanis (together, the “Borrowers”) on liability only. At the same time, the court explained that discovery on damages, including whether the security at issue was sold in a commercially-reasonable manner, would be allowed. Pursuant to Civil Rule 53 and Local Rule 99.02, this matter was referred to the undersigned Magistrate for a damages hearing. See July 25, 2022 Order of Reference. The damages hearing has been continued three times to permit time for discovery; it is currently scheduled for October 3 and 4, 2023. As explained below, that hearing is VACATED. 2. Motion to Compel On March 24, 2023, the Borrowers filed a motion to compel discovery and to impose sanctions. In it, they essentially contended that the Lenders have slow-walked production of documents and failed to produce a privilege log, even though many of the documents produced contained redactions. The Lenders filed a motion in opposition, and the Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - Bl Borrowers filed a reply in further support, on April 7 and 19, respectively. The Lenders countered that they were producing documents on a rolling basis, though they admittedly secured—or simply took—numerous deadline extensions. They further countered they intended to produce a privilege log after all documents were produced. The Borrowers responded that the privilege log and certain discovery were still outstanding. On April 25, the Lenders filed a motion to file a sur-reply, along with a copy of the proposed sur-reply. That motion was granted. In the sur-reply, the Lenders represented that their rolling discovery is basically routine supplementation of discovery and that, at the same time the motion to file sur-reply was filed, they produced a privilege log. They also objected to certain categories of documents demanded by the Borrowers. In doing so, the Lenders repeatedly refer to the Borrowers’ “extremely broad and largely irrelevant discovery demands.” 3. Order to Compel On April 26, the undersigned Magistrate granted the motion to compel. In doing so, it was explained that the Borrowers’ discovery demands are proportional to the needs of the case and that the discovery demands are relevant to damages and defenses. See Civ.R. 26(B)(1). The Lenders’ characterization of its discovery production as routine supplementation was rejected. Orders were issued to ensure the expedient disclosure of all outstanding discovery, while affording a final safeguard to the Lenders in case they identified any new defense to disclosure. Specifically, it was ordered: All responses to the Borrowers’ First Combined Set of Discovery Requests, from August 29, 2022, are due no later than May 19, 2023. Those documents shall include all documents identified in the Borrowers’ reply brief, filed April 19, 2023, unless—and only to the extent—that (1) the Lenders file a motion for a protective order, identifying the legal and factual bases for withholding the documents, and (2) delivering the responsive documents 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B2 to chambers for an in-camera inspection. Such motions shall be filed, and such documents shall be delivered, no later than May 19, 2023. (Emphasis added.) 4. Motion for Protective Order 4-1 The Motion On May 19, the Lenders filed a motion for protective order and delivered an astonishing 25 bankers’ boxes of documents to chambers—ostensibly for in-camera review. In addition, the Lenders submitted a 493-page “privilege log.” In the motion, the Lenders assert they properly withheld two categories of documents: (1) “proprietary and irrelevant” documents; and (2) documents protected by attorney-client privilege or the attorney-work- product doctrine. 4.2 “Proprietary” and “Irrelevant” Documents To facilitate discovery, and to address the Lenders’ concern about the use and further disclosure of certain sensitive documents, the Borrowers sensibly suggested the parties adopt the standard protective order available from the U.S. District Court, Southern District of Ohio on its website. The Lenders refused. They attempt to defend that refusal by noting there’s no rule or order requiring parties in this court to adopt the federal court’s form order. And they argue they were not required to negotiate any protective order to facilitate the timely disclosure of the documents because the court invited them to file a motion for protective order in the Order to Compel. As an initial matter, and as counsel for the Borrowers aptly summarized it, the proposed order “isn’t a protective order but is a wish list of things Plaintiff would like to see the Court find to absolve it of any and all wrongdoing [].” Further, it is routine discovery practice for counsel to agree on a protective order to facilitate the exchange of sensitive Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B3 documents while limiting their use and further disclosure. Usually, attorneys practicing in this court use the federal court’s form order. And they do so even in the absence of some rule or order explicitly requiring them to do so. After all, counsel are generally required to comply with discovery rules and orders and to attempt to resolve discovery disputes extrajudicially. Adoption of protective orders to limit the use and further disclosure of confidential or proprietary documents is a perfunctory mechanism to allow the exchange of discoverable, but otherwise private, documents. The Lenders unreasonably refused to adopt one. The excuse that the court had invited the Lenders to apply for a protective order helps them none, as the protective order contemplated by the Order to Compel plainly related to substantive matters. The Lenders’ refusal to enter into an agreed protective order appears to be nothing short of a delay tactic and appears to constitute yet another refusal to abide by the court’s decisions. The court gets it: the Lenders do not agree that the Borrowers are contractually allowed to assert the defense that the sale of the assets was not accomplished in a ommercially-reasonable manner, and the Lenders do not agree the Borrowers are entitled to all the discovery they've demanded. But the court has already ruled on those issues, and those rulings stand unless and until they are reversed on appeal. Therefore, the court is not going to wade through 25 bankers’ boxes of documents and individually rule on their discoverability when the court has already ordered the Lenders to turn over the documents and where the Lenders did not—as they were ordered to do—identify the legal and factual basis for withholding each document. To the extent the Lenders identified “irrelevant” materials, the court assumes they meant “unresponsive.” In which case, it’s not clear why the Lenders need a protective order Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B4 in that regard. 4.3. Privilege and Work-Product Documents Among the boxes of documents, and referenced on the “privilege log,” are also thousands of documents the Lenders claim to be protected by attorney-client privilege or the attorney-work-product doctrine. The Lenders were ordered to identify the legal and factual basis for withholding each document. They did not. Instead, they expect the court to sort through the documents, evaluate each without citation to law or the aid of argument, and determine whether the documents must be disclosed. That is not going to happen. Additionally, the “privilege log” produced by the Lenders does not comply with Civ.R. 26(B)(8)(a). That rule states: When information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. (Emphasis added.) “Merely stating a broad and generalized claim of attorney-client privilege for all responsive communications that are allegedly privileged is insufficient.” Drummond v. State Farm Mutual Auto Ins. Co., 10th Dist. No. 22AP-100, 2023-Ohio-283, 206 N.E.3d 283, 125. A proper privilege log sets forth “facts * * * to support a finding that * * * the documents contain communications with legal counsel seeking legal advice” or that the documents were prepared in anticipation of trial and contain mental impressions, theories, or legal conclusions of an attorney or those working on behalf of the attorney. Id. at {1 27, 35-36. Because the Lenders’ failed to timely produce a privilege log compliant with Civ.R. 26, the Borrowers were unable to contest their privilege claims. The Lenders’ solution was to drop thousands of documents into the court’s lap with a shrug and a vexatious suggestion 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B5 that the court figure it out on its own, while failing to comply with the court’s order to provide the legal and factual basis for withholding each document. 4.4 Sanctions The Lenders’ failure to consider an agreed protective order, failure to provide a proper privilege log, and failure to comply with the court order to identify the legal and factual basis for withholding each document culminated in the Lenders’ delivery of 25 bankers’ boxes of documents to chambers purportedly for in-camera review. The prospect of delivering that volume of materials to chambers should have alerted the Lenders and their counsel that their chosen tack was ill-considered. Sanctions are appropriate. The Lenders and their counsel shall reimburse the Borrowers for their attorney fees and costs incurred to respond to the motion for protective order. Future discovery abuses will result in additional and more severe sanctions. 5 Orders The motion for protective order is DENIED. The Lenders and their counsel shall cooperate with the Borrowers’ counsel to negotiate a protective order to facilitate the Lenders’ disclosure of the documents it claims are confidential and proprietary. That cooperation shall commence immediately upon receipt of this Order. Counsel shall submit an agreed protective order to Judge Brown no later than September 12, 2023. Within two weeks of Judge Brown’s approval of the protective order, the Lenders shall provide all responsive documents it claims are confidential or proprietary to counsel for the Borrowers. No later than October 3, 2023, the Lenders shall produce to the Borrowers a Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - Bé revised privilege log that complies with Civ.R. 26. No later than September 22, 2023, counsel for the Lenders shall cause the 25 bankers’ boxes of documents delivered to chambers to be picked up and removed from chambers. Counsel shall work with the undersigned Magistrate’s secretary to schedule a time for pickup and removal. The October 3 and 4, 2023 damages hearing is VACATED. Counsel shall work with Judge Brown’s staff attorney to schedule a new hearing date. SO ORDERED. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B7 Franklin County Court of Common Pleas Date: 09-05-2023 Case Title: APF CREILLC ET AL -VS- TEHRAH HOSPITALITY LLC ET AL Case Number: 20CV007082 Type: MAGISTRATE ORDER So Ordered ee Sa meer /s/ Magistrate Jennifer R. Cordle Electronically signed on 2023-Sep-05 page 8 of 8 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 05 4:07 PM-20CV007082 0G533 - B8 Court Disposition Case Number: 20CV007082 Case Style: APF CRE| LLC ET AL -VS- TEHRAH HOSPITALITY LLC ET AL Motion Tie Off Information: 1. Motion CMS Document Id: 20CV0070822023-06-0799980000 Document Title: 06-07-2023-MOTION - PLAINTIFF: APF CRE | LLC - TO SET TELEPHONIC HEARING Disposition: MOTION IS MOOT 2. Motion CMS Document Id: 20CV0070822023-05- 1999980000 Document Title: 05-19-2023-MOTION FOR PROTECTIVE ORDER - PLAINTIFF: APF CRE | LLC Disposition: MOTION DENIED