Preview
Motion No. 5098193
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
June 19,2023 17:34
By: ANDREW J. DORMAN 0063410
Confirmation Nbr. 2887302
FRANK J. GORI CV 23 973767
vs.
Judge: SHERRIE MIDAY
PAUL E. KIBBLER IV, ET AL.
Pages Filed: 41
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
FRANK GORI, ) CASE NO.: CV 23 973767
)
Plaintiff, ) JUDGE SHERRIE MIDAY
)
vs. ) DEFENDANTS PAUL E. KIEBLER, IV
) & PEPPER PIKE CAPITAL PARTNERS,
PAUL E. KIEBLER, IV, et al., ) LLC'S MOTION TO QUASH
) PLAINTIFF'S SUBPOENA ISSUED TO
Defendants. ) STEVE POGOZELSKI
Pursuant to Civ. R. 45(C), Defendant Paul E. Kiebler IV (“Kiebler”) and Pepper
Pike Capital Partners, LLC (“Pepper Pike”) (collectively, the “Defendants”) by and through
counsel, respectfully request that this Honorable Court quash the subpoena issued to Steve
Pogozelski, the Director of Accounting at Pepper Pike, because it seeks irrelevant personal
and confidential financial information of Defendant Kiebler, his family, and various
business entities unrelated to this litigation.
I. INTRODUCTION
This is a straightforward breach of contract issue. Gori, who was neighbors with
Kiebler, was a retired senior partner at Ernst & Young. (Compl. 46, 48). In July 2020,
Gori met with Kiebler to discuss the potential for Gori to work at Kiebler’s company,
Pepper Pike Capital Partners, LLC, through being employed at Staffing. (Compl. 50).
Gori began his employment on August 3, 2020. (Compl. 67). As a W-2 employee, Gori
was paid a salary for his work. (Compl. 61). While Gori was employed at Staffing, he was
continuously distracted from his work due to his divorce proceedings. (Compl. 116). Less
than one year into Gori’s employment, difficulties arose which culminated in Gori leaving
his employment with Staffing. (Compl. 116—121). Gori alleges that he is entitled to
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additional compensation from Staffing pursuant to his purported employment agreement.
(Compl. 120—135).
Absent from Plaintiff’s Complaint, however, are any allegations establishing that Mr.
Kiebler nor any individual or entity other than Plaintiff’s employer—Staffing—owed (or
owes) him compensation. (See generally Compl.) Additionally, absent from Plaintiff’s
Complaint are any allegations of what Plaintiff purportedly may be owed separate and apart
from the alleged terms of his employment agreement with Staffing. (See generally Compl.)
Finally, absent from Plaintiff’s Complaint are any allegations that Defendant Kiebler raided
the Defendant entities’ coffers or that Plaintiff would have received his allegedly-owed
compensation butfor Defendant Kiebler’s alleged misuse of funds. (See generally Compl.)
On May 31, 2023, Plaintiff issued a subpoena to Steve Pogozelski, the Director of
Accounting of Defendant Pepper Pike, requesting the entirety of Defendant Kiebler’s
personal financial transaction information with no temporal or subject matter limitation
(the “Subpoena”). (See Exhibit A, May 31, 2023 Steve Pogozelski Subpoena.) The
Subpoena seeks the discovery of personal and confidential financial information wholly
irrelevant to the allegations outlined in Plaintiff’s Complaint. Indeed, the Subpoena is
seeking all financial transactions of Defendant Kiebler without subject matter or temporal
limitations. There is no limitation of the records sought whatsoever, let alone an
appropriate limitation to obtain only those records that are arguable relevant or could lead
to the discovery of admissible evidence. For example, the Subpoena, as written, seeks Mr.
Kiebler’s transactions that are entirely personal in nature—for example, as written, the
Subpoena would seek Defendant Kiebler’s grocery store purchases—that go well beyond the
scope of the issues presented in this instant action. As such, the Subpoena is another
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example of Plaintiff’s clear attempts to use this Court as a means to harass and burden Mr.
Kiebler and the other Defendants to collect on a judgment he does not have.1
Defendants have attempted to meet and confer with Plaintiff regarding his overbroad
and unduly burdensome Subpoena. Indeed, on June 7, 2023, undersigned counsel conferred
with counsel for Plaintiff regarding the above-identified issues with the Subpoena as drafted.
(See Exhibit B, Attorney Simms Email.) Counsel for Plaintiff advised that they would “not
agree that limiting our subpoena to Steve Pogozelski is necessary.” (Id.) As such, there is a
clear impasse that requires this Court’s intervention.
Finally, in addition to the unduly burdensome Subpoena issued by Plaintiff, Plaintiff
on May 31, 2023 propounded on the Defendants his first set of discovery requests. (See
Exhibit C, Plaintiff’s Request from Production of Documents.) Along with being overly
broad and unduly burdensome on its face, requesting 121 categories of documents, Plaintiff
requested the exact same documents from the Defendants as he does from the Subpoena,
including requests for:
Request No. 66: Produce all records related to bank accounts, lock boxes,
safe deposit boxes and/or investment accounts for all Defendants including
account opening and/or closing documents, all signature cards, all financial
statements, all records of withdrawal, records of deposit, records of transfer
and information confirming transfer of funds, copies of canceled checks (front
and back), all credit applications including any information provided by any
individual, any and all records of deposits made from any source, any and all
records pertaining to personal or commercial lines of credit applied for and/or
opened whether or not drawn upon, any and all records pertaining to
collateral for loans, including appraisals, securities or available funds, and all
related communications between any financial institution and Defendants.
1 As counsel for Plaintiff acknowledged the same in the presence of the Court during proceedings on January
17, 2023, Plaintiff named numerous defendants for no reason other than to try to leverage those entities for
collection purposes in the (unlikely) event Plaintiff - at some unascertained future time - secures a judgment
against Kiebler or PPCP. The Subpoena is similarly in furtherance of Plaintiff’s abuses of this Court’s
processes.
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Request No. 92: Produce all files and/or document compilations created and
maintained by Steve Pogozelski at any location including but not limited to
his home containing financial information related to Defendant Kiebler’s
personal financial transactions, debt payments, fund transfers, fund deposits,
mortgage payments, and/or use of partnership monies by Defendant Kiebler.
(Exhibit C at p. 12, 15-16.) It is clear that these requests as written are overly broad, unduly
burdensome, and seeking documents well beyond the scope of the relevant issues in this
instant action, and as such, Plaintiff is seeking to offset any legitimate objection by Pepper
Pike and Defendant Kiebler by issuing his Subpoena to Steve Pogozelski, who, once again
is an employee of Pepper Pike. This is improper and a clear abuse of the discovery process.2
2 For example, see Stokes v. Xerox Corp., E.D.Mich. No. 05-CV-71683-DT, 2006 U.S. Dist. LEXIS 98888, at *7
(Oct. 5, 2006) discussing the issue of a plaintiff issuing a subpoena to an employee of a defendant, holding
that:
Plaintiff argues that her subpoenaing of Crockett under Rule 45 is proper because he is a non
party. However, as stated previously, in this case Crockett is acting as the representative of
Defendant. The subpoena seeks documents belonging to Defendant. This fact is clear because
Plaintiff admits in her Response that the documents sought by the subpoena are subsumed
within the production requests under Rule 34 she made to Defendant in April 2006. Plaintiff
proceeded under Rule 45 with the subpoena to Crockett only when she was not satisfied with
Defendant's response to the earlier production requests. Therefore, the Court will consider
Plaintiff's Rule 45 subpoena to Crockett to be an attempt to subpoena the records of a party
rather than a nonparty.
The leading treatises agree that although Rule 45 may apply to both parties and nonparties,
resort to Rule 45 should not be allowed when it circumvents the requirements and protections
of Rule 34 for the production of documents belonging to a party. "If documents are available
from a party, it has been thought preferable to have them obtained pursuant to Rule 34 rather
than subpoenaing them from a nonparty witness." 8A Charles Alan Wright, et al., Federal
Practice and Procedure § 2204 at 365 (2nd ed. 1994) (citing Bada Co. v. Montgomery Ward & Co.,
32 F.R.D. 208 (S.D. Cal. 1963) and Overly v. Hall-Neal Furnace Co., 12 F.R.D. 112 (N.D. Ohio
1951)). "Although Rule 45 is not limited by its terms to nonparties, it should not be used to
obtain pretrial production of documents or things, or inspection of premises, from a party in
circumvention of discovery rules or orders. Discovery from a party, as distinct from a
nonparty, is governed by Rule 34, not Rule 45." 7 Moore's Federal Practice § 34.02[5][e] (3d ed.)
(citing Hasbro, Inc. v. Serafino, 168 F.R.D. 99 (D. Mass. 1996)).
***
Accordingly, the Court finds that the majority view is that a party should not be permitted to
circumvent the requirements and protections of Rule 34 by proceeding under Rule 45 for the
production of documents belonging to a party. As stated earlier, Plaintiff sought these
documents in her production requests under Rule 34 made to Defendant in April 2006.
Plaintiff argues that Defendant objected to these requests and failed to produce all of them.
However, if that is the case Plaintiff should have moved to compel production under Rule
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In order to protect against the disclosure of confidential and irrelevant information
and Plaintiff’s abuses of the discovery process, Defendants filed this Motion.
II. LAW AND ARGUMENT
A. Motion to Quash Standard
Pursuant to Civ. R. 45(C)(1), “[a] party or an attorney responsible for the issuance
and service of a subpoena shall take reasonable steps to avoid imposing undue burden or
expense on a person subject to that subpoena.” Bonewitz v. Red Ferris Chevrolet, Inc., 9th Dist.
Wayne C.A. No. 01CA0006, 2001 Ohio App. LEXIS 4162, at *3 (Sept. 19, 2001). Civ.R.
45(C) does not limit who may file a motion to quash a subpoena, i.e., the rule '"does not say
a motion to quash can only be filed by the person subject to the subpoena.'" Molnar v.
Margaret W. Wong & Assocs. Co., L.P.A., 8th Dist. Cuyahoga No. 109440, 2021-Ohio-1402,
29, quoting Hanick v. Ferrara, 2020-Ohio-5019, 161 N.E.3d 1, 55 (7th Dist.); Yidi, L.L.C. v.
JHB Hotel, L.L.C., 2016-Ohio-6955, 70 N.E.3d 1231, 8 (8th Dist.) An employer has
standing to maintain a motion to quash a subpoena served on an employee where the
information sought was obtained while the employee was "acting within the course and
scope of her employment." Hoerig v. Tiffin Scenic Studios, Inc., 3d Dist. Seneca No. 13-11-18,
2011-Ohio-6103, 24.
Upon “timely motion, the court from which the subpoena was issued shall quash or
modify the subpoena ... if the subpoena ... subjects a person to undue burden.” Civ. R.
34(b). Plaintiff admitted during oral argument that she did nothing until approximately a
week and a half before discovery ended when she sought to depose Crockett and have him
produce the documents. Plaintiff served the subpoena on September 21, eight days before
discovery was due to close. The deposition date was the last day of discovery, September 29.
This effectively shortened the time for producing the documents to eight days from the thirty
days allowed under Rule 34(b). Plaintiff will not be allowed to circumvent the procedures
in Rule 34 by subpoenaing Crockett under Rule 45. Defendant's motion to quash the
subpoena will be granted.
Id. (emphasis added.)
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45(C)(3)(d) (emphasis added). The term “undue” has been defined as “exceeding or
violating propriety or fitness; EXCESSIVE, IMMODERATE, UNWARRANTED; ***
contrary to justice, right, or law: UNLAWFUL.” Bonewitz, at *5-6 (emphasis original).
Likewise, "Civ.R. 45(C)(3) does not say the court can only quash a subpoena for the listed
reasons." Hanick at 56, citing Staff Note to July 1, 1993 Amendment to Civ.R. 45(C)(3).
Furthermore, unless a requesting party “shows a substantial need for the testimony or
material that cannot be otherwise met without undue hardship,” then the Court must quash
or modify the subpoena. Civ. R. 45(C)(5).
B. This Requested Documents are Irrelevant and Unduly Burdensome.
Defendant objects to the Subpoena on the grounds that the requested documents are
irrelevant to the subject matter of this lawsuit under Civ. R. 26(B)(1) and because the
Subpoena is unduly burdensome under Civ. R. 45(C)(3)(d).
It is well-established that "[s]ubpoenas are an instrument of discovery and, as such,
are subject to the overriding policies and procedures summarized in Civ. R. 26." Father's
House Internatl. v. Kurguz, C.P. No. 13-CV-008622, 2014 Ohio Misc. LEXIS 24831, at *8
(Ohio Apr. 4, 2014); see B.F.G. Emples. Credit Union v. Kopco & Co., 9th Dist. Lorain C.A.
No. 01CA007929, 2002-0hio-2202, 12 (analyzing the trial court's denial of a motion to
quash a subpoena under the purview of Civ.R. 26); Bell v. Nichols, 10th Dist. No. 10AP-
1036, 2013-Ohio-2559 (quashing irrelevant and unduly burdensome subpoenas by trial court
affirmed); Fed. Ins. Co. v. Exec. Coach Luxury Travel, 3d Dist. Nos. 1-09-17, 1-09-18, 2009-
0hio-5910, 42-44 (affirming decision quashing subpoenas as irrelevant), rev'd on unrelated
grounds, at 128 Ohio St.3d 331. To this end, Civ. R. 26(B)(1) provides that parties "may
obtain discovery regarding any matter, not privileged, which is relevant to the subject matter
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involved in the pending action[.] " Although Civ.R. 45 does not list irrelevance or
overbreadth as reasons for quashing a subpoena, it has been held that "the scope of
discovery under a subpoena is the same as the scope of discovery under Rule 26." Father's
House Internatl. v. Kurguz, supra.
As the Seventh District held in Hanick v. Ferrara:
Pursuant to Civ.R. 26(B)(1), a party may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action. Inadmissibility at trial is not grounds for objection if the
information appears reasonably calculated to lead to the discovery of
admissible evidence. Civ.R. 26(B)(1). A non-party would be unaware if the
information sought by the subpoena was relevant to the subject matter of the
action (and would have little incentive to care).
Reading Civ.R 34 in conjunction with its citation to Civ.R. 45 and Civ.R.
26(B) shows that a subpoena to a non-party can be challenged by a party on
grounds that it seeks a matter which is not relevant to the subject matter
involved in the pending action. See Civ.R. 34(C), citing Civ.R.
26(B) and Civ.R. 45. For instance, the Third District upheld a trial court's
decision which granted a party's motion to quash a subpoena issued to a non
party and found the information sought was not relevant to the subject matter
of the action. Federal Ins. Co. v. Executive Coach Luxury Travel, Inc., 3rd Dist.
Allen No. 1-09-17, 2009-Ohio-5910, 42-44. See also State ex rel. Ohio Civ.
Rights Commission v. Gunn, 45 Ohio St.2d 262, 267, 344 N.E.2d 327
(1976) (although the Supreme Court found the civil rules relating to filing
litigation were not applicable to the Commission's request for a court to
enforce a subpoena, the Court essentially said that in all cases where a
subpoena duces tecum is before a court for enforcement, the subpoena "is
subject to the requirements of pertinency to the issues being litigated").
***
An overbroad request which includes irrelevant information could in turn
make the burden of production an undue one on the party with the personal
right in the account (and on the non-party ordered to produce the records).
An undue burden is one that is excessive, immoderate, or unwarranted. Hoerig,
3d Dist. No. 13-11-18 at 23. Plus, it was within the trial court's discretion to
control discovery by precluding a request for information where the time
frame of material sought was viewed as impermissibly broad. See Blaschak v.
Union Sav. Bank & Tr. Co., 7th Dist. Jefferson No. 91-J-7, 1992 Ohio App.
LEXIS 4969 (Sep. 30, 1992).
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Hanick v. Ferrara, 2020-Ohio-5019, 161 N.E.3d 1, 58-59 (7th Dist.) (emphasis in original.)
Under this analysis, the Seventh District quashed a subpoena seeking financial records from
a defendant’s bank as the documents requested were irrelevant to the issues in the
complaint, and therefore unduly burdensome. Id. at ** 66-67.
The same is true here. Like in Hanick, there is absolutely no relevance between Mr.
Kiebler’ personal financial situation and any compensation Gori alleges he was entitled to
from his employment with Staffing. As discussed above, the Subpoena is seeking all
financial transactions of Defendant Kiebler without subject matter or temporal limitations.
There is no limitation of the records sought whatsoever, let alone an appropriate limitation
to obtain only those records that are arguable relevant or could lead to the discovery of
admissible evidence. As a result, any production of Mr. Kiebler’s personal financial records,
regardless of the size or scope of the production, is unduly burdensome.
Finally, as discussed above, Plaintiff has issued his Subpoena in a clear attempt to
circumvent any legitimate objection the Defendants may make, and this is an improper
abuse of the discovery process and the safeguards provided in Civ. R. 34 and 37. See Stokes v.
Xerox Corp., E.D.Mich. No. 05-CV-71683-DT, 2006 U.S. Dist. LEXIS 98888, at *7 (Oct. 5,
2006).
Based on the foregoing, Defendants respectfully request that this Court quash
Plaintiff’s subpoena to Steve Pogozelski, as the personal and confidential documents and
information sought are wholly irrelevant to the issues in this case, and sought in a clear
attempt to abuse the discovery process by issuing the Subpoena to an employee of Pepper
Pike, whose possession of the documents is solely by virtue of his employment.
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III. CONCLUSION
For these reasons, Defendants respectfully request that this Court quash Plaintiff’s
subpoena to Steve Pogozelski.
Respectfully submitted,
/s/ Andrew J. Dorman____________
ANDREW J. DORMAN (0063410)
JOSEPH S. SIMMS (0066584)
JACK MAIB (0098846)
REMINGER CO., L.P.A.
200 Public Square, Suite 1200
Cleveland, Ohio 44114
P: 216-430-2169 phone; F: 216-687-1841 fax
Email: adorman@reminger.com
jsimms@reminger.com
jmaib@reminger.com
Attorneys for Defendant Paul E. Kiebler IV & Pepper
Pike Capital Partners, LLC
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CERTIFICATE OF SERVICE
A copy of the foregoing was forwarded via the Court’s electronic filing system to all
counsel of record this 19th day of June, 2023.
/s/ Andrew J. Dorman____________
ANDREW J. DORMAN (0063410)
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ZASHIN&RICH
Ernst & Young Tower | 950 Main Avenue, 4th Floor | Cleveland, Ohio 44113 I p 216 696 4441 ] f: 216 696 1618 [zrlaw.com
Lisa A. Kainec
Attorney at Law
lak@zrlaw.com
May 31,2023
Via U.S. Certified Mail
Steve Pogozelski
4800 Lisa Lane
North Royalton, OH 44133
RE: Frank J. Gori v. Paul E. Kiebler, IV, et al.
Cuyahoga County Court of Common Pleas
Case No. CV23 973767
To Whom It May Concern:
Enclosed please find a subpoena issued in the above-captioned matter for records within your
possession. We do not intend to conduct an oral deposition on June 14, 2023 but would appreciate an
authenticated copy of the requested records. If there is a cost associated with duplicating the requested
records, please contact me with the estimated cost.
Furthermore, should you have any questions concerning this subpoena, please contact me by
telephone at (216) 696-4441 or by email at lak@zrlaw.com. Thank you for your assistance with this matter.
Sincerely,
ZASHIN & RICH CO., L.P.A.
AX 'fafatC'
Lisa A. Kainec
Enclosures
cc: Andrew J. Dorman, Esq. (adorman@reminqer.com)
Joseph S. Simms, Esq. (jsimms@reminqer.com)
Jack Maib, Esq. (imaib@reminqer.com)
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EXHIBIT A
NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1.
IN THE COURT OF COMMON PLEAS
SUBPOENA CIVIL RULE 45
THE STATE OF OHIO
ss.
Cuyahoga County
Frank J. Gori_________________
Plaintiff/Petitioner No. CV 23 973767
vs.
Paul E. Kiebler, IV, et al._________
Defendant/Respondent judge Sherrie Miday
To
Steve Pogozelski____
4800 Lisa Lane_____
North Royalton, OH 44133
YOU ARE COMMANDED to appear in the Court of Common Pleas to testify as witness on behalf of the
(PLAINTIFF/DEFENDANT) in the above entitled case and not depart the Court without leave. Fail not under penalty
of the law. Your appearance is required on the of at o'clock .M. in Courtroom
No. of the:
Justice Center-Court Tower Courthouse Square Cuyahoga County Courthouse
1200 Ontario Street 310 W. Lakeside Avenue One Lakeside Avenue
Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113
YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of deposition
in the above case.
PLACE OF DEPOSITION DATE TIME
YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following
documents or objects at the place, date and time specified below (list documents or objects):
See attached Exhibit A
Zashin & Rich, 950 Main Ave., 4th FL, Cleveland, OH 44113 06/14/2023 10:00 a.m.
PLACE DATE TIME
YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE TIME
To insure taxation of their fees, witnesses must report each attendance to the Clerk of Court of Common Pleas on the first floor of the Justice
Center-Courts Tower.
Section 2335.06 of the Ohio Revised Code provides that witnesses are entitled to receive $12.00 for each full day's attendance and $6.00 for
each half day's attendance, plus ten cents per mile traveled to and from his place of residence outside of the City of Cleveland proper. Such fees
are taxed as costs.
Li/ajA. Kainec Zashin & Rich, 950 Main Street, 4th Floor, Cleveland, OH 44113
ADDRESS
Plaintiff, Frank J. Gori 05/31/2023
Mgnature REPRESENTING DATE
Cuyahoga County, Clerk of Courts
Clerk
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THE STATE OF OHIO
ss.
Cuyahoga County
Affidavit of Service of Subpoena by Sheriff or Officer, Attorney or Private Person
On the day of , 20 .
I served this Subpoena on the within named:
as follows:
SHERIFF'S FEES
Service on $ By
Deputy Sheriff/Attorney
Copy
Miles Travel Subscribed and sworn to before me, a
Return
$ This day of , 20
Witness entitled to miles
RULE 45. RULES OF CIVIL PROCEDURE, PARTS C & D
(C) Protection of persons subject to subpoenas. (1) A party or an attorney responsible (D) Duties in responding to subpoena. (1) A person responding to a subpoena to
for the issuance and service of a subpoena shall take reasonable steps to avoid produce documents shall, at the person's option, produce them as they are kept in
imposing undue burden or expense on a person subject to that subpoena. (2)(a) A the usual course of business or organized and labeled to correspond with the
person commanded to produce under divisions (A)(1)(b), (ill), (iv), (v), or (vi) of this categories in the subpoena. A person producing documents or electronically stored
rule need not appear in person at the place of production or inspection unless information pursuant to a subpoena for them shall permit their inspection and
commanded to attend and give testimony at a deposition, hearing, or trial, (b) Subject copying by all parties present at the time and place set in the subpoena for inspection
to division and copying. (2) If a request does not specify the form or forms for producing
(D) (2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), electronically stored information, a person responding to a subpoena may produce
(iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or the information in a form or forms in which the information is ordinarily maintained if
before the time specified for compliance if such time is less than fourteen days after that form is reasonably useable, or in any form that is reasonably useable. Unless
service, serve upon the party or attorney designated in the subpoena written ordered by the court or agreed to by the person subpoenaed, a person responding to
objections to production. If objection is made, the party serving the subpoena shall a subpoena need not produce the same electronically stored information in more
not be entitled to production except pursuant to an order of the court by which the than one form. (3) A person need not provide discovery of electronically stored
subpoena was issued. If objection has been made, the party serving the subpoena, information when the production imposes undue burden or expense. On motion to
upon notice to the person commanded to produce, may move at any time for an order compel discovery or for a protective order, the person from whom electronically
to compel the production. An order to compel production shall protect any person stored information is sought must show that the information is not reasonably
who is not a party or an officer of a party from significant expense resulting from the accessible because of undue burden or expense. If a showing of undue burden or
production commanded. (3) On timely motion, the court from which the subpoena expense is made, the court may nonetheless order production of electronically stored
was issued shall quash or modify the subpoena, or order appearance or production information if the requesting party shows good cause. The court shall consider the
only under specified conditions, if the subpoena does any of the following: (a) Fails to factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering
allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise production of electronically stored information, the court may specify the format,
protected matter and no exception or waiver applies; (c) Requires disclosure of a fact extent, timing, allocation of expenses and other conditions for the discovery of the
known or opinion held by an expert not retained or specially employed by any party in electronically stored information. (4) When information subject to a subpoena is
anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the withheld on a claim that it is privileged or subject to protection as trial preparation
fact or opinion does not describe specific events or occurrences in dispute and results materials, the claim shall be made expressly and shall be supported by a description of
from study by that expert that was not made at the request of any party; (d) Subjects the nature of the documents, communications, or things not produced that is
a person to undue burden. sufficient to enable the demanding party to contest the claim. (5) If information is
(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting produced in response to a subpoena that is subject to a claim of privilege or of
discovery under this rule shall attempt to resolve any claim of undue burden through protection as trial-preparation material, the person making the claim may notify any
discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of party that received the information of the claim and the basis for it. After being
this rule shall be supported by an affidavit of the subpoenaed person or a certificate of notified, a receiving party must promptly return, sequester, or destroy the specified
that person's attorney of the efforts made to resolve any claim of undue burden. (5) If information and any copies within the party's possession, custody or control. A party
a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash may not use or disclose the information until the claim is resolved. A receiving party
or modify the subpoena unless the party in whose behalf the subpoena is issued may promptly present the information to the court under seal for a determination of
shows the claim of privilege or of protection as trial-preparation material. If the receiving
a substantial need for the testimony or material that cannot be otherwise met without party disclosed the information before being notified, it must take reasonable steps to
undue hardship and assures that the person to whom the subpoena is addressed will retrieve it. The person who produced the information must preserve the information
be reasonably compensated. until the claim is resolved.
Revised As Of 10/2018
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SUBPOENA DUCES TECUM
EXHIBIT A
I. INSTRUCTIONS
1. YOUR APPEARANCE IS NEITHER REQUESTED NOR REQUIRED BY THIS
SUBPOENA.
2. Please produce the documents specified below by 10:00 AM on June 14, 2023 to Zashin &
Rich Co., L.P.A., Attn: Lisa A. Kainec, 950 Main Ave., 4th Floor, Cleveland, OH 44113. If
you prefer to send the documents electronically, please email them to Attorney Lisa A. Kainec
at lak@zrlaw.com.
3. If you have any questions, please contact Attorney Lisa A. Kainec at (216) 696-4441 or
lak@zrlaw.com.
4. The documents requested for production include those in the possession, custody, or control
of you, your agents, representatives, or attorneys.
5. The term “document” refers to any printed, typewritten, handwritten, or otherwise recorded
matter, of whatever character, including, without limitation, any letter, memorandum,
memorandum of conference or telephone conversation, telegram, telefax, teletype, ledger, log,
travel record, notes, summary, analysis, diary, journal, notations on a calendar, appointment
book, business card, report, investigation, study, expert report, minutes list, schedule, notice,
statistics, tabulation, computer printout, electronic compilation of data, e-mail, paper,
certificate, paper or exhibit filed or submitted in a court or in an administrative or arbitration
proceeding, permit, permit application, book, pamphlet, handbill, circular, poster,
advertisement, bulletin, brochure, magazine article, press release, newspaper article,
publication, script, transcript, manual, handbook, form, record, application, agreement, offer,
prospectus, contract, agreement, instrument, will, deed, assignment, loan/mortgage
application, loan/mortgage paper, appraisal, estimate, license, graph, chart, diagram, map,
drawing, blueprint, site plan, picture, photograph, tape, videotape, movie, accounting record,
statement, invoice, canceled check, per diem record, calculation, payment receipt, bank
account record, financial statement, tax return, articles of incorporation and all other tangible
things upon which any handwriting, typing, printing, drawing, representation, photostatic or
other copy, magnetic or electrical impulse, or other form of communication is recorded or
reproduced. If the original is not in your or your attorney’s or agent’s possession, custody or
control, “document” means the best copy of such recorded matter that is in your possession,
custody or control.
6. Each request refers to all documents that you know exist or that you can locate or discover by
reasonably diligent efforts.
Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ
IL DOCUMENTS TO PRODUCE
You are subpoenaed to provide the following documents:
1.) All files and/or document compilations created and maintained by Steve Pogozelski at any
location including but not limited to his home containing financial information related to
Defendant Paul E. Kiebler’s personal financial transactions, debt payments, fund transfers,
fund deposits, mortgage payments, and/or use of partnership monies by Defendant Paul E.
Kiebler.
Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ
-2-
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
FRANK J. GORI, )
) CASE NO.: CV 23 973767
)
Plaintiff, )
) Judge Sherrie Miday
v. )
)
PAUL E. KIBBLER, IV, et al. )
)
Defendants. )
AFFIDAVIT
NOW COMES who, being first duly sworn and
cautioned pursuant to law, declares under penalty of perjury that the following is true and correct:
1. My name is . I am over the age of 18 years
and am competent to make this Affidavit.
2. I am the custodian of records maintained by and/or I have
authority to certify the authenticity of such records.
3. Steve Pogozelski is not a party to the above-referenced litigation.
4. I am familiar with the manner in which and circumstances under which Steve Pogozelski
creates and maintains its records by virtue of my duties and responsibilities.
5. Pursuant to the subpoena duces tecum served upon Steve Pogozelski, I reviewed my
records and files and have determined that the documents provided by Steve Pogozelski on
, 2023 constitute true and accurate copies of all files, records, and other
documents responsive to the subpoena duces tecum received in the above-styled case.
6. I further certify the following pertaining the records produced by Steve Pogozelski on
,2023:
Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ
a. I am familiar with the records and the circumstances under which they were made;
b. These records were made at or near the time of each act, event, condition, or
information set forth in the records;
c. These records were made by, or transmitted information transmitted by, someone
with knowledge of the act, event, condition, or information set forth in the records;
d. The records were made and kept in the course of regularly conducted activity of
Steve Pogozelski; and
e. Making these records was a regular practice of Steve Pogozelski ’ s business activity.
(Signature)
(Printed Name)
Affiant
Sworn to and subscribed before me,
this day of , 2023.
Notary Public
[SEAL]
My Commission Expires:
Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ
Jack Maib
From: Joseph S. Simms
Sent: Wednesday, June 14, 2023 9:31 AM
To: Lisa A. Kainec; Andrew J. Dorman; Jack Maib
Cc: Stephen S. Zashin
Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests
We disagree. Mr. Kiebler's personal finances are irrelevant. Moreover, a subpoena to a party's employee seeking
documents he may maintain in his capacity as an employee instead of a document request to such party is
inappropriate. In any event, given your position below, we will be moving to quash the subpoena. Thank you.
Joseph S. Simms, Esq. - 216-430-2265 (direct) - 216-798-2052 (mobile)
Reminger Co., L.P.A.
From: Lisa A. Kainec
Sent: Wednesday, June 14, 2023 8:22 AM
To: Joseph S. Simms ; Andrew J. Dorman ; Jack Maib
Cc: Stephen S. Zashin
Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests
Joe,
For the same reasons stated in our Brief in Opposition to the Kiebler Motion to Quash the CF Bank subpoena, we do not
agree that limiting our subpoena to Steve Pogozelski is necessary.
Mr. Kiebler's personal financial transactions are directly at issue and any files maintained by Mr. Pogozelski that
document intermingling of personal financial and corporate transactions and/or funds are directly relevant and
discoverable.
We are willing to discuss further and can be available on Thursday or Friday for a call, let us know what times work for
your schedule.
Regards,
Lisa
Lisa A. Kainec Ernst & Young Tower
Attorney at Law 950 Main Avenue, 4th Floor
Cleveland, Ohio 44113
Bio | Newsletter p: 216.696.4441 f: 216.696.1618
zrlaw.com | OO©
This email and any attachments contain confidential information from the law
firm of Zashin & Rich Co., L.P.A. They are intended only for viewing by the
named recipient. If that is not you, do not read this email, and notify Zashin &
Rich Co., L.P.A. immediately at 216-696-4441. Any viewing, distribution, or
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Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ
1
EXHIBIT B
From: Joseph S. Simms
Sent: Wednesday, June 07, 2023 9:41 AM
To: Lisa A. Kainec ; Andrew J. Dorman ; Jack Maib
Cc: Stephen S. Zashin
Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests
Lisa-The subpoena to Steve Pogozelski, like the subpoena to the bank that you previously issued, is overbroad as written
and seeks documents and information that have absolutely no conceivable bearing on this matt
Preview
Motion No. 5098193 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... June 19,2023 17:34 By: ANDREW J. DORMAN 0063410 Confirmation Nbr. 2887302 FRANK J. GORI CV 23 973767 vs. Judge: SHERRIE MIDAY PAUL E. KIBBLER IV, ET AL. Pages Filed: 41 Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO FRANK GORI, ) CASE NO.: CV 23 973767 ) Plaintiff, ) JUDGE SHERRIE MIDAY ) vs. ) DEFENDANTS PAUL E. KIEBLER, IV ) & PEPPER PIKE CAPITAL PARTNERS, PAUL E. KIEBLER, IV, et al., ) LLC'S MOTION TO QUASH ) PLAINTIFF'S SUBPOENA ISSUED TO Defendants. ) STEVE POGOZELSKI Pursuant to Civ. R. 45(C), Defendant Paul E. Kiebler IV (“Kiebler”) and Pepper Pike Capital Partners, LLC (“Pepper Pike”) (collectively, the “Defendants”) by and through counsel, respectfully request that this Honorable Court quash the subpoena issued to Steve Pogozelski, the Director of Accounting at Pepper Pike, because it seeks irrelevant personal and confidential financial information of Defendant Kiebler, his family, and various business entities unrelated to this litigation. I. INTRODUCTION This is a straightforward breach of contract issue. Gori, who was neighbors with Kiebler, was a retired senior partner at Ernst & Young. (Compl. 46, 48). In July 2020, Gori met with Kiebler to discuss the potential for Gori to work at Kiebler’s company, Pepper Pike Capital Partners, LLC, through being employed at Staffing. (Compl. 50). Gori began his employment on August 3, 2020. (Compl. 67). As a W-2 employee, Gori was paid a salary for his work. (Compl. 61). While Gori was employed at Staffing, he was continuously distracted from his work due to his divorce proceedings. (Compl. 116). Less than one year into Gori’s employment, difficulties arose which culminated in Gori leaving his employment with Staffing. (Compl. 116—121). Gori alleges that he is entitled to Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ additional compensation from Staffing pursuant to his purported employment agreement. (Compl. 120—135). Absent from Plaintiff’s Complaint, however, are any allegations establishing that Mr. Kiebler nor any individual or entity other than Plaintiff’s employer—Staffing—owed (or owes) him compensation. (See generally Compl.) Additionally, absent from Plaintiff’s Complaint are any allegations of what Plaintiff purportedly may be owed separate and apart from the alleged terms of his employment agreement with Staffing. (See generally Compl.) Finally, absent from Plaintiff’s Complaint are any allegations that Defendant Kiebler raided the Defendant entities’ coffers or that Plaintiff would have received his allegedly-owed compensation butfor Defendant Kiebler’s alleged misuse of funds. (See generally Compl.) On May 31, 2023, Plaintiff issued a subpoena to Steve Pogozelski, the Director of Accounting of Defendant Pepper Pike, requesting the entirety of Defendant Kiebler’s personal financial transaction information with no temporal or subject matter limitation (the “Subpoena”). (See Exhibit A, May 31, 2023 Steve Pogozelski Subpoena.) The Subpoena seeks the discovery of personal and confidential financial information wholly irrelevant to the allegations outlined in Plaintiff’s Complaint. Indeed, the Subpoena is seeking all financial transactions of Defendant Kiebler without subject matter or temporal limitations. There is no limitation of the records sought whatsoever, let alone an appropriate limitation to obtain only those records that are arguable relevant or could lead to the discovery of admissible evidence. For example, the Subpoena, as written, seeks Mr. Kiebler’s transactions that are entirely personal in nature—for example, as written, the Subpoena would seek Defendant Kiebler’s grocery store purchases—that go well beyond the scope of the issues presented in this instant action. As such, the Subpoena is another Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ example of Plaintiff’s clear attempts to use this Court as a means to harass and burden Mr. Kiebler and the other Defendants to collect on a judgment he does not have.1 Defendants have attempted to meet and confer with Plaintiff regarding his overbroad and unduly burdensome Subpoena. Indeed, on June 7, 2023, undersigned counsel conferred with counsel for Plaintiff regarding the above-identified issues with the Subpoena as drafted. (See Exhibit B, Attorney Simms Email.) Counsel for Plaintiff advised that they would “not agree that limiting our subpoena to Steve Pogozelski is necessary.” (Id.) As such, there is a clear impasse that requires this Court’s intervention. Finally, in addition to the unduly burdensome Subpoena issued by Plaintiff, Plaintiff on May 31, 2023 propounded on the Defendants his first set of discovery requests. (See Exhibit C, Plaintiff’s Request from Production of Documents.) Along with being overly broad and unduly burdensome on its face, requesting 121 categories of documents, Plaintiff requested the exact same documents from the Defendants as he does from the Subpoena, including requests for: Request No. 66: Produce all records related to bank accounts, lock boxes, safe deposit boxes and/or investment accounts for all Defendants including account opening and/or closing documents, all signature cards, all financial statements, all records of withdrawal, records of deposit, records of transfer and information confirming transfer of funds, copies of canceled checks (front and back), all credit applications including any information provided by any individual, any and all records of deposits made from any source, any and all records pertaining to personal or commercial lines of credit applied for and/or opened whether or not drawn upon, any and all records pertaining to collateral for loans, including appraisals, securities or available funds, and all related communications between any financial institution and Defendants. 1 As counsel for Plaintiff acknowledged the same in the presence of the Court during proceedings on January 17, 2023, Plaintiff named numerous defendants for no reason other than to try to leverage those entities for collection purposes in the (unlikely) event Plaintiff - at some unascertained future time - secures a judgment against Kiebler or PPCP. The Subpoena is similarly in furtherance of Plaintiff’s abuses of this Court’s processes. Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / cOhfirmation Nbr. 2887302 / CLCEJ Request No. 92: Produce all files and/or document compilations created and maintained by Steve Pogozelski at any location including but not limited to his home containing financial information related to Defendant Kiebler’s personal financial transactions, debt payments, fund transfers, fund deposits, mortgage payments, and/or use of partnership monies by Defendant Kiebler. (Exhibit C at p. 12, 15-16.) It is clear that these requests as written are overly broad, unduly burdensome, and seeking documents well beyond the scope of the relevant issues in this instant action, and as such, Plaintiff is seeking to offset any legitimate objection by Pepper Pike and Defendant Kiebler by issuing his Subpoena to Steve Pogozelski, who, once again is an employee of Pepper Pike. This is improper and a clear abuse of the discovery process.2 2 For example, see Stokes v. Xerox Corp., E.D.Mich. No. 05-CV-71683-DT, 2006 U.S. Dist. LEXIS 98888, at *7 (Oct. 5, 2006) discussing the issue of a plaintiff issuing a subpoena to an employee of a defendant, holding that: Plaintiff argues that her subpoenaing of Crockett under Rule 45 is proper because he is a non party. However, as stated previously, in this case Crockett is acting as the representative of Defendant. The subpoena seeks documents belonging to Defendant. This fact is clear because Plaintiff admits in her Response that the documents sought by the subpoena are subsumed within the production requests under Rule 34 she made to Defendant in April 2006. Plaintiff proceeded under Rule 45 with the subpoena to Crockett only when she was not satisfied with Defendant's response to the earlier production requests. Therefore, the Court will consider Plaintiff's Rule 45 subpoena to Crockett to be an attempt to subpoena the records of a party rather than a nonparty. The leading treatises agree that although Rule 45 may apply to both parties and nonparties, resort to Rule 45 should not be allowed when it circumvents the requirements and protections of Rule 34 for the production of documents belonging to a party. "If documents are available from a party, it has been thought preferable to have them obtained pursuant to Rule 34 rather than subpoenaing them from a nonparty witness." 8A Charles Alan Wright, et al., Federal Practice and Procedure § 2204 at 365 (2nd ed. 1994) (citing Bada Co. v. Montgomery Ward & Co., 32 F.R.D. 208 (S.D. Cal. 1963) and Overly v. Hall-Neal Furnace Co., 12 F.R.D. 112 (N.D. Ohio 1951)). "Although Rule 45 is not limited by its terms to nonparties, it should not be used to obtain pretrial production of documents or things, or inspection of premises, from a party in circumvention of discovery rules or orders. Discovery from a party, as distinct from a nonparty, is governed by Rule 34, not Rule 45." 7 Moore's Federal Practice § 34.02[5][e] (3d ed.) (citing Hasbro, Inc. v. Serafino, 168 F.R.D. 99 (D. Mass. 1996)). *** Accordingly, the Court finds that the majority view is that a party should not be permitted to circumvent the requirements and protections of Rule 34 by proceeding under Rule 45 for the production of documents belonging to a party. As stated earlier, Plaintiff sought these documents in her production requests under Rule 34 made to Defendant in April 2006. Plaintiff argues that Defendant objected to these requests and failed to produce all of them. However, if that is the case Plaintiff should have moved to compel production under Rule Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ In order to protect against the disclosure of confidential and irrelevant information and Plaintiff’s abuses of the discovery process, Defendants filed this Motion. II. LAW AND ARGUMENT A. Motion to Quash Standard Pursuant to Civ. R. 45(C)(1), “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” Bonewitz v. Red Ferris Chevrolet, Inc., 9th Dist. Wayne C.A. No. 01CA0006, 2001 Ohio App. LEXIS 4162, at *3 (Sept. 19, 2001). Civ.R. 45(C) does not limit who may file a motion to quash a subpoena, i.e., the rule '"does not say a motion to quash can only be filed by the person subject to the subpoena.'" Molnar v. Margaret W. Wong & Assocs. Co., L.P.A., 8th Dist. Cuyahoga No. 109440, 2021-Ohio-1402, 29, quoting Hanick v. Ferrara, 2020-Ohio-5019, 161 N.E.3d 1, 55 (7th Dist.); Yidi, L.L.C. v. JHB Hotel, L.L.C., 2016-Ohio-6955, 70 N.E.3d 1231, 8 (8th Dist.) An employer has standing to maintain a motion to quash a subpoena served on an employee where the information sought was obtained while the employee was "acting within the course and scope of her employment." Hoerig v. Tiffin Scenic Studios, Inc., 3d Dist. Seneca No. 13-11-18, 2011-Ohio-6103, 24. Upon “timely motion, the court from which the subpoena was issued shall quash or modify the subpoena ... if the subpoena ... subjects a person to undue burden.” Civ. R. 34(b). Plaintiff admitted during oral argument that she did nothing until approximately a week and a half before discovery ended when she sought to depose Crockett and have him produce the documents. Plaintiff served the subpoena on September 21, eight days before discovery was due to close. The deposition date was the last day of discovery, September 29. This effectively shortened the time for producing the documents to eight days from the thirty days allowed under Rule 34(b). Plaintiff will not be allowed to circumvent the procedures in Rule 34 by subpoenaing Crockett under Rule 45. Defendant's motion to quash the subpoena will be granted. Id. (emphasis added.) Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ 45(C)(3)(d) (emphasis added). The term “undue” has been defined as “exceeding or violating propriety or fitness; EXCESSIVE, IMMODERATE, UNWARRANTED; *** contrary to justice, right, or law: UNLAWFUL.” Bonewitz, at *5-6 (emphasis original). Likewise, "Civ.R. 45(C)(3) does not say the court can only quash a subpoena for the listed reasons." Hanick at 56, citing Staff Note to July 1, 1993 Amendment to Civ.R. 45(C)(3). Furthermore, unless a requesting party “shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship,” then the Court must quash or modify the subpoena. Civ. R. 45(C)(5). B. This Requested Documents are Irrelevant and Unduly Burdensome. Defendant objects to the Subpoena on the grounds that the requested documents are irrelevant to the subject matter of this lawsuit under Civ. R. 26(B)(1) and because the Subpoena is unduly burdensome under Civ. R. 45(C)(3)(d). It is well-established that "[s]ubpoenas are an instrument of discovery and, as such, are subject to the overriding policies and procedures summarized in Civ. R. 26." Father's House Internatl. v. Kurguz, C.P. No. 13-CV-008622, 2014 Ohio Misc. LEXIS 24831, at *8 (Ohio Apr. 4, 2014); see B.F.G. Emples. Credit Union v. Kopco & Co., 9th Dist. Lorain C.A. No. 01CA007929, 2002-0hio-2202, 12 (analyzing the trial court's denial of a motion to quash a subpoena under the purview of Civ.R. 26); Bell v. Nichols, 10th Dist. No. 10AP- 1036, 2013-Ohio-2559 (quashing irrelevant and unduly burdensome subpoenas by trial court affirmed); Fed. Ins. Co. v. Exec. Coach Luxury Travel, 3d Dist. Nos. 1-09-17, 1-09-18, 2009- 0hio-5910, 42-44 (affirming decision quashing subpoenas as irrelevant), rev'd on unrelated grounds, at 128 Ohio St.3d 331. To this end, Civ. R. 26(B)(1) provides that parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ involved in the pending action[.] " Although Civ.R. 45 does not list irrelevance or overbreadth as reasons for quashing a subpoena, it has been held that "the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26." Father's House Internatl. v. Kurguz, supra. As the Seventh District held in Hanick v. Ferrara: Pursuant to Civ.R. 26(B)(1), a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Inadmissibility at trial is not grounds for objection if the information appears reasonably calculated to lead to the discovery of admissible evidence. Civ.R. 26(B)(1). A non-party would be unaware if the information sought by the subpoena was relevant to the subject matter of the action (and would have little incentive to care). Reading Civ.R 34 in conjunction with its citation to Civ.R. 45 and Civ.R. 26(B) shows that a subpoena to a non-party can be challenged by a party on grounds that it seeks a matter which is not relevant to the subject matter involved in the pending action. See Civ.R. 34(C), citing Civ.R. 26(B) and Civ.R. 45. For instance, the Third District upheld a trial court's decision which granted a party's motion to quash a subpoena issued to a non party and found the information sought was not relevant to the subject matter of the action. Federal Ins. Co. v. Executive Coach Luxury Travel, Inc., 3rd Dist. Allen No. 1-09-17, 2009-Ohio-5910, 42-44. See also State ex rel. Ohio Civ. Rights Commission v. Gunn, 45 Ohio St.2d 262, 267, 344 N.E.2d 327 (1976) (although the Supreme Court found the civil rules relating to filing litigation were not applicable to the Commission's request for a court to enforce a subpoena, the Court essentially said that in all cases where a subpoena duces tecum is before a court for enforcement, the subpoena "is subject to the requirements of pertinency to the issues being litigated"). *** An overbroad request which includes irrelevant information could in turn make the burden of production an undue one on the party with the personal right in the account (and on the non-party ordered to produce the records). An undue burden is one that is excessive, immoderate, or unwarranted. Hoerig, 3d Dist. No. 13-11-18 at 23. Plus, it was within the trial court's discretion to control discovery by precluding a request for information where the time frame of material sought was viewed as impermissibly broad. See Blaschak v. Union Sav. Bank & Tr. Co., 7th Dist. Jefferson No. 91-J-7, 1992 Ohio App. LEXIS 4969 (Sep. 30, 1992). Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ Hanick v. Ferrara, 2020-Ohio-5019, 161 N.E.3d 1, 58-59 (7th Dist.) (emphasis in original.) Under this analysis, the Seventh District quashed a subpoena seeking financial records from a defendant’s bank as the documents requested were irrelevant to the issues in the complaint, and therefore unduly burdensome. Id. at ** 66-67. The same is true here. Like in Hanick, there is absolutely no relevance between Mr. Kiebler’ personal financial situation and any compensation Gori alleges he was entitled to from his employment with Staffing. As discussed above, the Subpoena is seeking all financial transactions of Defendant Kiebler without subject matter or temporal limitations. There is no limitation of the records sought whatsoever, let alone an appropriate limitation to obtain only those records that are arguable relevant or could lead to the discovery of admissible evidence. As a result, any production of Mr. Kiebler’s personal financial records, regardless of the size or scope of the production, is unduly burdensome. Finally, as discussed above, Plaintiff has issued his Subpoena in a clear attempt to circumvent any legitimate objection the Defendants may make, and this is an improper abuse of the discovery process and the safeguards provided in Civ. R. 34 and 37. See Stokes v. Xerox Corp., E.D.Mich. No. 05-CV-71683-DT, 2006 U.S. Dist. LEXIS 98888, at *7 (Oct. 5, 2006). Based on the foregoing, Defendants respectfully request that this Court quash Plaintiff’s subpoena to Steve Pogozelski, as the personal and confidential documents and information sought are wholly irrelevant to the issues in this case, and sought in a clear attempt to abuse the discovery process by issuing the Subpoena to an employee of Pepper Pike, whose possession of the documents is solely by virtue of his employment. Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / cOnfirmation Nbr. 2887302 / CLCEJ III. CONCLUSION For these reasons, Defendants respectfully request that this Court quash Plaintiff’s subpoena to Steve Pogozelski. Respectfully submitted, /s/ Andrew J. Dorman____________ ANDREW J. DORMAN (0063410) JOSEPH S. SIMMS (0066584) JACK MAIB (0098846) REMINGER CO., L.P.A. 200 Public Square, Suite 1200 Cleveland, Ohio 44114 P: 216-430-2169 phone; F: 216-687-1841 fax Email: adorman@reminger.com jsimms@reminger.com jmaib@reminger.com Attorneys for Defendant Paul E. Kiebler IV & Pepper Pike Capital Partners, LLC Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ CERTIFICATE OF SERVICE A copy of the foregoing was forwarded via the Court’s electronic filing system to all counsel of record this 19th day of June, 2023. /s/ Andrew J. Dorman____________ ANDREW J. DORMAN (0063410) Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / ckQfirmation Nbr. 2887302 / CLCEJ ZASHIN&RICH Ernst & Young Tower | 950 Main Avenue, 4th Floor | Cleveland, Ohio 44113 I p 216 696 4441 ] f: 216 696 1618 [zrlaw.com Lisa A. Kainec Attorney at Law lak@zrlaw.com May 31,2023 Via U.S. Certified Mail Steve Pogozelski 4800 Lisa Lane North Royalton, OH 44133 RE: Frank J. Gori v. Paul E. Kiebler, IV, et al. Cuyahoga County Court of Common Pleas Case No. CV23 973767 To Whom It May Concern: Enclosed please find a subpoena issued in the above-captioned matter for records within your possession. We do not intend to conduct an oral deposition on June 14, 2023 but would appreciate an authenticated copy of the requested records. If there is a cost associated with duplicating the requested records, please contact me with the estimated cost. Furthermore, should you have any questions concerning this subpoena, please contact me by telephone at (216) 696-4441 or by email at lak@zrlaw.com. Thank you for your assistance with this matter. Sincerely, ZASHIN & RICH CO., L.P.A. AX 'fafatC' Lisa A. Kainec Enclosures cc: Andrew J. Dorman, Esq. (adorman@reminqer.com) Joseph S. Simms, Esq. (jsimms@reminqer.com) Jack Maib, Esq. (imaib@reminqer.com) Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ EXHIBIT A NOTE: A BLANK PAGE 2 MUST ALSO BE TURNED IN WITH COMPLETED PAGE 1. IN THE COURT OF COMMON PLEAS SUBPOENA CIVIL RULE 45 THE STATE OF OHIO ss. Cuyahoga County Frank J. Gori_________________ Plaintiff/Petitioner No. CV 23 973767 vs. Paul E. Kiebler, IV, et al._________ Defendant/Respondent judge Sherrie Miday To Steve Pogozelski____ 4800 Lisa Lane_____ North Royalton, OH 44133 YOU ARE COMMANDED to appear in the Court of Common Pleas to testify as witness on behalf of the (PLAINTIFF/DEFENDANT) in the above entitled case and not depart the Court without leave. Fail not under penalty of the law. Your appearance is required on the of at o'clock .M. in Courtroom No. of the: Justice Center-Court Tower Courthouse Square Cuyahoga County Courthouse 1200 Ontario Street 310 W. Lakeside Avenue One Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 Cleveland, Ohio 44113 YOU ARE COMMANDED to appear at the place, date and time specified below to testify at the taking of deposition in the above case. PLACE OF DEPOSITION DATE TIME YOU ARE COMMANDED to produce and permit inspection, copying, testing or sampling of the following documents or objects at the place, date and time specified below (list documents or objects): See attached Exhibit A Zashin & Rich, 950 Main Ave., 4th FL, Cleveland, OH 44113 06/14/2023 10:00 a.m. PLACE DATE TIME YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES DATE TIME To insure taxation of their fees, witnesses must report each attendance to the Clerk of Court of Common Pleas on the first floor of the Justice Center-Courts Tower. Section 2335.06 of the Ohio Revised Code provides that witnesses are entitled to receive $12.00 for each full day's attendance and $6.00 for each half day's attendance, plus ten cents per mile traveled to and from his place of residence outside of the City of Cleveland proper. Such fees are taxed as costs. Li/ajA. Kainec Zashin & Rich, 950 Main Street, 4th Floor, Cleveland, OH 44113 ADDRESS Plaintiff, Frank J. Gori 05/31/2023 Mgnature REPRESENTING DATE Cuyahoga County, Clerk of Courts Clerk Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 2887302 / CLCEJ THE STATE OF OHIO ss. Cuyahoga County Affidavit of Service of Subpoena by Sheriff or Officer, Attorney or Private Person On the day of , 20 . I served this Subpoena on the within named: as follows: SHERIFF'S FEES Service on $ By Deputy Sheriff/Attorney Copy Miles Travel Subscribed and sworn to before me, a Return $ This day of , 20 Witness entitled to miles RULE 45. RULES OF CIVIL PROCEDURE, PARTS C & D (C) Protection of persons subject to subpoenas. (1) A party or an attorney responsible (D) Duties in responding to subpoena. (1) A person responding to a subpoena to for the issuance and service of a subpoena shall take reasonable steps to avoid produce documents shall, at the person's option, produce them as they are kept in imposing undue burden or expense on a person subject to that subpoena. (2)(a) A the usual course of business or organized and labeled to correspond with the person commanded to produce under divisions (A)(1)(b), (ill), (iv), (v), or (vi) of this categories in the subpoena. A person producing documents or electronically stored rule need not appear in person at the place of production or inspection unless information pursuant to a subpoena for them shall permit their inspection and commanded to attend and give testimony at a deposition, hearing, or trial, (b) Subject copying by all parties present at the time and place set in the subpoena for inspection to division and copying. (2) If a request does not specify the form or forms for producing (D) (2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), electronically stored information, a person responding to a subpoena may produce (iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or the information in a form or forms in which the information is ordinarily maintained if before the time specified for compliance if such time is less than fourteen days after that form is reasonably useable, or in any form that is reasonably useable. Unless service, serve upon the party or attorney designated in the subpoena written ordered by the court or agreed to by the person subpoenaed, a person responding to objections to production. If objection is made, the party serving the subpoena shall a subpoena need not produce the same electronically stored information in more not be entitled to production except pursuant to an order of the court by which the than one form. (3) A person need not provide discovery of electronically stored subpoena was issued. If objection has been made, the party serving the subpoena, information when the production imposes undue burden or expense. On motion to upon notice to the person commanded to produce, may move at any time for an order compel discovery or for a protective order, the person from whom electronically to compel the production. An order to compel production shall protect any person stored information is sought must show that the information is not reasonably who is not a party or an officer of a party from significant expense resulting from the accessible because of undue burden or expense. If a showing of undue burden or production commanded. (3) On timely motion, the court from which the subpoena expense is made, the court may nonetheless order production of electronically stored was issued shall quash or modify the subpoena, or order appearance or production information if the requesting party shows good cause. The court shall consider the only under specified conditions, if the subpoena does any of the following: (a) Fails to factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering allow reasonable time to comply; (b) Requires disclosure of privileged or otherwise production of electronically stored information, the court may specify the format, protected matter and no exception or waiver applies; (c) Requires disclosure of a fact extent, timing, allocation of expenses and other conditions for the discovery of the known or opinion held by an expert not retained or specially employed by any party in electronically stored information. (4) When information subject to a subpoena is anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the withheld on a claim that it is privileged or subject to protection as trial preparation fact or opinion does not describe specific events or occurrences in dispute and results materials, the claim shall be made expressly and shall be supported by a description of from study by that expert that was not made at the request of any party; (d) Subjects the nature of the documents, communications, or things not produced that is a person to undue burden. sufficient to enable the demanding party to contest the claim. (5) If information is (4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting produced in response to a subpoena that is subject to a claim of privilege or of discovery under this rule shall attempt to resolve any claim of undue burden through protection as trial-preparation material, the person making the claim may notify any discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of party that received the information of the claim and the basis for it. After being this rule shall be supported by an affidavit of the subpoenaed person or a certificate of notified, a receiving party must promptly return, sequester, or destroy the specified that person's attorney of the efforts made to resolve any claim of undue burden. (5) If information and any copies within the party's possession, custody or control. A party a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash may not use or disclose the information until the claim is resolved. A receiving party or modify the subpoena unless the party in whose behalf the subpoena is issued may promptly present the information to the court under seal for a determination of shows the claim of privilege or of protection as trial-preparation material. If the receiving a substantial need for the testimony or material that cannot be otherwise met without party disclosed the information before being notified, it must take reasonable steps to undue hardship and assures that the person to whom the subpoena is addressed will retrieve it. The person who produced the information must preserve the information be reasonably compensated. until the claim is resolved. Revised As Of 10/2018 Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ SUBPOENA DUCES TECUM EXHIBIT A I. INSTRUCTIONS 1. YOUR APPEARANCE IS NEITHER REQUESTED NOR REQUIRED BY THIS SUBPOENA. 2. Please produce the documents specified below by 10:00 AM on June 14, 2023 to Zashin & Rich Co., L.P.A., Attn: Lisa A. Kainec, 950 Main Ave., 4th Floor, Cleveland, OH 44113. If you prefer to send the documents electronically, please email them to Attorney Lisa A. Kainec at lak@zrlaw.com. 3. If you have any questions, please contact Attorney Lisa A. Kainec at (216) 696-4441 or lak@zrlaw.com. 4. The documents requested for production include those in the possession, custody, or control of you, your agents, representatives, or attorneys. 5. The term “document” refers to any printed, typewritten, handwritten, or otherwise recorded matter, of whatever character, including, without limitation, any letter, memorandum, memorandum of conference or telephone conversation, telegram, telefax, teletype, ledger, log, travel record, notes, summary, analysis, diary, journal, notations on a calendar, appointment book, business card, report, investigation, study, expert report, minutes list, schedule, notice, statistics, tabulation, computer printout, electronic compilation of data, e-mail, paper, certificate, paper or exhibit filed or submitted in a court or in an administrative or arbitration proceeding, permit, permit application, book, pamphlet, handbill, circular, poster, advertisement, bulletin, brochure, magazine article, press release, newspaper article, publication, script, transcript, manual, handbook, form, record, application, agreement, offer, prospectus, contract, agreement, instrument, will, deed, assignment, loan/mortgage application, loan/mortgage paper, appraisal, estimate, license, graph, chart, diagram, map, drawing, blueprint, site plan, picture, photograph, tape, videotape, movie, accounting record, statement, invoice, canceled check, per diem record, calculation, payment receipt, bank account record, financial statement, tax return, articles of incorporation and all other tangible things upon which any handwriting, typing, printing, drawing, representation, photostatic or other copy, magnetic or electrical impulse, or other form of communication is recorded or reproduced. If the original is not in your or your attorney’s or agent’s possession, custody or control, “document” means the best copy of such recorded matter that is in your possession, custody or control. 6. Each request refers to all documents that you know exist or that you can locate or discover by reasonably diligent efforts. Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ IL DOCUMENTS TO PRODUCE You are subpoenaed to provide the following documents: 1.) All files and/or document compilations created and maintained by Steve Pogozelski at any location including but not limited to his home containing financial information related to Defendant Paul E. Kiebler’s personal financial transactions, debt payments, fund transfers, fund deposits, mortgage payments, and/or use of partnership monies by Defendant Paul E. Kiebler. Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ -2- IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO FRANK J. GORI, ) ) CASE NO.: CV 23 973767 ) Plaintiff, ) ) Judge Sherrie Miday v. ) ) PAUL E. KIBBLER, IV, et al. ) ) Defendants. ) AFFIDAVIT NOW COMES who, being first duly sworn and cautioned pursuant to law, declares under penalty of perjury that the following is true and correct: 1. My name is . I am over the age of 18 years and am competent to make this Affidavit. 2. I am the custodian of records maintained by and/or I have authority to certify the authenticity of such records. 3. Steve Pogozelski is not a party to the above-referenced litigation. 4. I am familiar with the manner in which and circumstances under which Steve Pogozelski creates and maintains its records by virtue of my duties and responsibilities. 5. Pursuant to the subpoena duces tecum served upon Steve Pogozelski, I reviewed my records and files and have determined that the documents provided by Steve Pogozelski on , 2023 constitute true and accurate copies of all files, records, and other documents responsive to the subpoena duces tecum received in the above-styled case. 6. I further certify the following pertaining the records produced by Steve Pogozelski on ,2023: Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ a. I am familiar with the records and the circumstances under which they were made; b. These records were made at or near the time of each act, event, condition, or information set forth in the records; c. These records were made by, or transmitted information transmitted by, someone with knowledge of the act, event, condition, or information set forth in the records; d. The records were made and kept in the course of regularly conducted activity of Steve Pogozelski; and e. Making these records was a regular practice of Steve Pogozelski ’ s business activity. (Signature) (Printed Name) Affiant Sworn to and subscribed before me, this day of , 2023. Notary Public [SEAL] My Commission Expires: Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ Jack Maib From: Joseph S. Simms Sent: Wednesday, June 14, 2023 9:31 AM To: Lisa A. Kainec; Andrew J. Dorman; Jack Maib Cc: Stephen S. Zashin Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests We disagree. Mr. Kiebler's personal finances are irrelevant. Moreover, a subpoena to a party's employee seeking documents he may maintain in his capacity as an employee instead of a document request to such party is inappropriate. In any event, given your position below, we will be moving to quash the subpoena. Thank you. Joseph S. Simms, Esq. - 216-430-2265 (direct) - 216-798-2052 (mobile) Reminger Co., L.P.A. From: Lisa A. Kainec Sent: Wednesday, June 14, 2023 8:22 AM To: Joseph S. Simms ; Andrew J. Dorman ; Jack Maib Cc: Stephen S. Zashin Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests Joe, For the same reasons stated in our Brief in Opposition to the Kiebler Motion to Quash the CF Bank subpoena, we do not agree that limiting our subpoena to Steve Pogozelski is necessary. Mr. Kiebler's personal financial transactions are directly at issue and any files maintained by Mr. Pogozelski that document intermingling of personal financial and corporate transactions and/or funds are directly relevant and discoverable. We are willing to discuss further and can be available on Thursday or Friday for a call, let us know what times work for your schedule. Regards, Lisa Lisa A. Kainec Ernst & Young Tower Attorney at Law 950 Main Avenue, 4th Floor Cleveland, Ohio 44113 Bio | Newsletter p: 216.696.4441 f: 216.696.1618 zrlaw.com | OO© This email and any attachments contain confidential information from the law firm of Zashin & Rich Co., L.P.A. They are intended only for viewing by the named recipient. If that is not you, do not read this email, and notify Zashin & Rich Co., L.P.A. immediately at 216-696-4441. Any viewing, distribution, or copying of this e-mail or its attachments by persons other than the named recipients is prohibited. Electronically Filed 06/19/2023 17:34 / MOTION / CV 23 973767 / Confirmation Nbr. 2887302 / CLCEJ 1 EXHIBIT B From: Joseph S. Simms Sent: Wednesday, June 07, 2023 9:41 AM To: Lisa A. Kainec ; Andrew J. Dorman ; Jack Maib Cc: Stephen S. Zashin Subject: RE: Gori v. Kiebler, et al. - Plaintiff's Discovery Requests Lisa-The subpoena to Steve Pogozelski, like the subpoena to the bank that you previously issued, is overbroad as written and seeks documents and information that have absolutely no conceivable bearing on this matt