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CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 1 of 5
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
DIANNE DAVIS
CASE NO.: CV 2014-01-0073
Plaintiff
JUDGE THOMAS TEODOSIO
vs.
Motion for Protective Order
SIMON PROPERTY GROUP, INC., et al.
Defendants.
Matter before the Court
Plaintiff, Dianne Davis, respectfully requests this Court grant a motion for protective
order in regards to the deposition of Plaintiff, Dianne Davis, unilaterally scheduled on Friday
April 11, 2014. (See Affidavit of Michael J. Elliott, Esq., at paragraph 8). This deposition was
scheduled by Defense counsel without prior agreement from Plaintiff counsel with only 4 days
notice and as the deposition has been scheduled to take place at the offices of Defense counsel in
Cleveland, Ohio outside the jurisdiction of this Court. Plaintiff counsel’s statement affirming
those steps that have been taken to resolve the matter in accordance to Civ. R. 26(C) is attached
hereto as Exhibit 1.
Background
This is a premises liability case that occurred on Defendant’s property at 3265 W. Market
Street, Akron, Ohio, i.e.,Summit Mall. At the onset of discovery, counsel for Plaintiff served
Defense counsel with written discovery along with a request for an inspection of the location of
the injury. (See Affidavit of Michael J. Elliott, Esq., at paragraph 3.) Following communication
between counsel, an agreed upon date of April 15, 2014 was reached, almost one month prior to
the date of inspection. (See Affidavit of Michael J. Elliott, Esq., at paragraph 4.) The stated
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purpose of this inspection was to allow counsel and his client to view the site, in order to gain a
more complete understanding of what happened to Plaintiff at the time of her injury. (See
Affidavit of Michael J. Elliott, Esq., at paragraph 5.)
Following the agreement to conduct the site inspection Defense counsel noticed the
Plaintiff for her deposition along with an indication that Plaintiff’s deposition would need to
occur before the site inspection. (See Affidavit of Michael J. Elliott, Esq., at paragraph 6.)1
Plaintiff counsel responded by indicated that he and his client needed the opportunity to examine
the premises in order to gain a better understanding of how she was injured and the nature of the
defective condition prior to her deposition. See Affidavit of Michael J. Elliott, Esq., at paragraph
5.) (“Most importantly, we need to conduct the onsite inspection prior to any depositions taking
place in this case. I need to be able to photograph and preserve the scene for purposes of the
depositions I will want to take and I need to be given the opportunity to view the area and
understand the nature of the area where the injury occurred in order to counsel and advise my
client prior to having her deposition taken.) In reply, Defense counsel reiterated his self imposed
requirement that Plaintiff’s deposition be conducted before Plaintiff or her attorney be given an
opportunity to view the site. (See Affidavit of Michael J. Elliott, Esq., at paragraph 7 (“However,
your client must give her version of events on the record first.”).)
Law and Argument
Civil Rule 26(C) addresses protective orders, and reads in pertinent part:
1
During a phone conference with the Court on this same issue, it was suggested by Defense
counsel that the Defendant was unaware of exactly how, where, and why Plaintiff became
injured on its premises. This is untrue. Shortly after Plaintiff became injured she contacted the
mall to report her injury including where and how the injury happened. Thereafter, Plaintiff was
contacted and spoke with the Defendant’s insurance company who was also informed as to how,
where, and why the injuries occurred.
2
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(C) Protective orders. Upon motion by any party or by the person from
whom discovery is sought, and for good cause shown, the court in which
the action is pending may make any order that justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the following: (1) that the
discovery not be had; (2) that the discovery may be had only on specified
terms and conditions, including a designation of the time or place***.
In the present case, Defense counsel has violated local rule 17 by his decision to schedule
depositions unilaterally. Local rule 17 reads:
(b) The following guidelines for the taking of depositions emphasize the
expectations as to certain issues and are intended to supplement Ohio R.
Civ. P. 26 and 30:
(1) Scheduling. Counsel are expected to make a timely and good faith
effort to confer and agree to schedules for taking of depositions. Unless
counsel otherwise agree, depositions shall be conducted during normal
business hours. Except where good cause exists, no Notice of Deposition
or Subpoena shall issue prior to a scheduling conference with opposing
counsel. Counsel for the deponent shall not cancel a deposition or limit the
length of a deposition without stipulation of the examining counsel or
order of the court.
(Emphasis added).
After the site inspection was scheduled and agreed upon, Defense counsel unilaterally
scheduled the deposition of Plaintiff in advance of the April 15, 2014 inspection, for the purpose
of not allowing Plaintiff or counsel to view the site beforehand.
Furthermore, even if Defense counsel had a good faith basis to unilaterally notice the
Plaintiff’s deposition, the notice would stillbe defective given its unreasonably short period of
time. Civ. R. 30 requires that a party be given reasonable notice. (“(B) Notice of Examination;
General Requirements; Nonstenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone. (1) A party desiring to take the deposition
of any person upon oral examination shall give reasonable notice in writing to every other party
to the action.” (Emphasis added).) Four (4) days notice is hardly reasonable notice.
3
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As this is an improperly noticed deposition, and is in violation of local rules, and will be
unfairly prejudicial to Plaintiff and Plaintiff’s counsel, a protective order must be put in place to
prevent this deposition from occurring.
Conclusion
Defense counsel has taken the liberty of scheduling the deposition of Plaintiff outside the
jurisdiction of this Court, without consent of Plaintiff counsel, and on unreasonably short notice.
This is a highly prejudicial circumstance, and a protective order is an appropriate measure to
protect Plaintiff.
Furthermore, for the foregoing reasons Plaintiff’s deposition should not proceed unless or
until the Plaintiff and her attorney have been given the opportunity to conduct a site inspection
pursuant to the previously agreed upon terms and conditions.
Respectfully submitted,
SCANLON & ELLIOTT
_____/s/Michael J. Elliott___________
Michael J. Elliott (0070072)
159 South Main Street
Suite 400
Akron, Ohio 44308
Phone: (330) 376-1440
Facsimile: (330) 376-0257
MElliott@scanlonco.com
Attorney for Plaintiff, Dianne Davis
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion for Protective Order
was sent via electronic mail on this 9th day of April, 2014, to the following:
Eric W. Henry, Esq.
Sennett Fisher
29225 Chagrin Blvd Ste 350
Cleveland OH 44122
EHenry@sennettfisher.com
_____/s/Michael J. Elliott_________________
Michael J. Elliott (0070072)
Attorney for Plaintiff
5
Preview
CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 1 of 5 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO DIANNE DAVIS CASE NO.: CV 2014-01-0073 Plaintiff JUDGE THOMAS TEODOSIO vs. Motion for Protective Order SIMON PROPERTY GROUP, INC., et al. Defendants. Matter before the Court Plaintiff, Dianne Davis, respectfully requests this Court grant a motion for protective order in regards to the deposition of Plaintiff, Dianne Davis, unilaterally scheduled on Friday April 11, 2014. (See Affidavit of Michael J. Elliott, Esq., at paragraph 8). This deposition was scheduled by Defense counsel without prior agreement from Plaintiff counsel with only 4 days notice and as the deposition has been scheduled to take place at the offices of Defense counsel in Cleveland, Ohio outside the jurisdiction of this Court. Plaintiff counsel’s statement affirming those steps that have been taken to resolve the matter in accordance to Civ. R. 26(C) is attached hereto as Exhibit 1. Background This is a premises liability case that occurred on Defendant’s property at 3265 W. Market Street, Akron, Ohio, i.e.,Summit Mall. At the onset of discovery, counsel for Plaintiff served Defense counsel with written discovery along with a request for an inspection of the location of the injury. (See Affidavit of Michael J. Elliott, Esq., at paragraph 3.) Following communication between counsel, an agreed upon date of April 15, 2014 was reached, almost one month prior to the date of inspection. (See Affidavit of Michael J. Elliott, Esq., at paragraph 4.) The stated 1 CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 2 of 5 purpose of this inspection was to allow counsel and his client to view the site, in order to gain a more complete understanding of what happened to Plaintiff at the time of her injury. (See Affidavit of Michael J. Elliott, Esq., at paragraph 5.) Following the agreement to conduct the site inspection Defense counsel noticed the Plaintiff for her deposition along with an indication that Plaintiff’s deposition would need to occur before the site inspection. (See Affidavit of Michael J. Elliott, Esq., at paragraph 6.)1 Plaintiff counsel responded by indicated that he and his client needed the opportunity to examine the premises in order to gain a better understanding of how she was injured and the nature of the defective condition prior to her deposition. See Affidavit of Michael J. Elliott, Esq., at paragraph 5.) (“Most importantly, we need to conduct the onsite inspection prior to any depositions taking place in this case. I need to be able to photograph and preserve the scene for purposes of the depositions I will want to take and I need to be given the opportunity to view the area and understand the nature of the area where the injury occurred in order to counsel and advise my client prior to having her deposition taken.) In reply, Defense counsel reiterated his self imposed requirement that Plaintiff’s deposition be conducted before Plaintiff or her attorney be given an opportunity to view the site. (See Affidavit of Michael J. Elliott, Esq., at paragraph 7 (“However, your client must give her version of events on the record first.”).) Law and Argument Civil Rule 26(C) addresses protective orders, and reads in pertinent part: 1 During a phone conference with the Court on this same issue, it was suggested by Defense counsel that the Defendant was unaware of exactly how, where, and why Plaintiff became injured on its premises. This is untrue. Shortly after Plaintiff became injured she contacted the mall to report her injury including where and how the injury happened. Thereafter, Plaintiff was contacted and spoke with the Defendant’s insurance company who was also informed as to how, where, and why the injuries occurred. 2 CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 3 of 5 (C) Protective orders. Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place***. In the present case, Defense counsel has violated local rule 17 by his decision to schedule depositions unilaterally. Local rule 17 reads: (b) The following guidelines for the taking of depositions emphasize the expectations as to certain issues and are intended to supplement Ohio R. Civ. P. 26 and 30: (1) Scheduling. Counsel are expected to make a timely and good faith effort to confer and agree to schedules for taking of depositions. Unless counsel otherwise agree, depositions shall be conducted during normal business hours. Except where good cause exists, no Notice of Deposition or Subpoena shall issue prior to a scheduling conference with opposing counsel. Counsel for the deponent shall not cancel a deposition or limit the length of a deposition without stipulation of the examining counsel or order of the court. (Emphasis added). After the site inspection was scheduled and agreed upon, Defense counsel unilaterally scheduled the deposition of Plaintiff in advance of the April 15, 2014 inspection, for the purpose of not allowing Plaintiff or counsel to view the site beforehand. Furthermore, even if Defense counsel had a good faith basis to unilaterally notice the Plaintiff’s deposition, the notice would stillbe defective given its unreasonably short period of time. Civ. R. 30 requires that a party be given reasonable notice. (“(B) Notice of Examination; General Requirements; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action.” (Emphasis added).) Four (4) days notice is hardly reasonable notice. 3 CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 4 of 5 As this is an improperly noticed deposition, and is in violation of local rules, and will be unfairly prejudicial to Plaintiff and Plaintiff’s counsel, a protective order must be put in place to prevent this deposition from occurring. Conclusion Defense counsel has taken the liberty of scheduling the deposition of Plaintiff outside the jurisdiction of this Court, without consent of Plaintiff counsel, and on unreasonably short notice. This is a highly prejudicial circumstance, and a protective order is an appropriate measure to protect Plaintiff. Furthermore, for the foregoing reasons Plaintiff’s deposition should not proceed unless or until the Plaintiff and her attorney have been given the opportunity to conduct a site inspection pursuant to the previously agreed upon terms and conditions. Respectfully submitted, SCANLON & ELLIOTT _____/s/Michael J. Elliott___________ Michael J. Elliott (0070072) 159 South Main Street Suite 400 Akron, Ohio 44308 Phone: (330) 376-1440 Facsimile: (330) 376-0257 MElliott@scanlonco.com Attorney for Plaintiff, Dianne Davis 4 CV-2014-01-0073 MOTI 04/09/2014 17:22:53 PM TEODOSIO, THOMAS Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Protective Order was sent via electronic mail on this 9th day of April, 2014, to the following: Eric W. Henry, Esq. Sennett Fisher 29225 Chagrin Blvd Ste 350 Cleveland OH 44122 EHenry@sennettfisher.com _____/s/Michael J. Elliott_________________ Michael J. Elliott (0070072) Attorney for Plaintiff 5