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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
CIVIL DIVISION
North American Substation Services, LLC, :
Plaintiff,
v. : Case No. 13 CV003876
JD Power Systems, LLC, : Judge Timothy Horton
Defendant.
MEMORANDUM IN OPPOSITION OF DEFENDANT, JD POWER SYSTEMS, LLC,
TO PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS FILED ON JULY 31, 2014
I. PLAINTIFF’S MOTION TO COMPEL IS UNTIMELY
The discovery cut-off date for this matter was July 28, 2014. Plaintiff did not file the
motion to compel until three (3) days after the discovery cut-off. The Franklin County Local
Rule 47.02, on discovery, specifically states:
The discovery cutoff date specified in the Case Schedule shall be the
last date for any party to seek the involvement of the Trial Judge in
the discovery process by way of motion seeking a ruling, an order,
sanctions, or other Court action, absent extraordinary circumstances.
Voluntary, mutually agreed-upon discovery, including perpetuation of trial
testimony by video tape or otherwise, may continue after the discovery
cutoff in a manner that does not delay any other event on the case schedule.
Plaintiffs motion to compel is untimely and should be stricken from the record.
Plaintiff has already filed a reply memorandum in support of the motion to compel before
Defendant’s time to oppose the motion to compel expired. Since the original motion is untimely,
the reply memorandum should also be stricken from the record. Additionally, the reply
memorandum appears to simply be an attempt by Plaintiff to file a surreply without seeking
leave of Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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Il. DEPOSITIONS OF THE PARTIES
In the event the Court considers Plaintiff's motion to compel, Defendant submits the
following argument in opposition to the motion and reply memorandum. The depositions of the
witnesses were not requested until more than a year after Plaintiff initiated the litigation and
more than six (6) months after Defendant’s disclosed the witnesses. Prior to Plaintiff's request
for the depositions, Defendant had been prevented from fully investigating the claims asserted
against it. Plaintiff should not be permitted to delay discovery, fail to disclose information
requested and deny Defendant access to a reasonable inspection and testing and then attempt to
compel employees of Defendant to appear for depositions.
It appears Plaintiff wants to place Defendant at a disadvantage by failing to timely
produce records and refuse to allow Defendant to fully inspect the cause of the fire prior to the
depositions of Defendant’s employees. This type of gamesmanship is contrary to the purposes of
discovery. Plaintiff was not being denied the opportunity to take the depositions of Defendant’s
employees. Defendant was merely requesting it be afforded the opportunity to obtain
information regarding the claims of Plaintiff before the depositions of the employees were
conducted.
The information before this Court in Defendant’s Motion to Compel the Inspection and
Testing evidences the repeated attempts by Defendant to timely obtain the requested discover
and inspection with testing. Defendant had initially requested an inspection of the generator
prior to suit as there was no information available as to the location of the generator. After suit
was filed, Defendant requested information and production of documents through written
discovery submitted on May 8, 2013 and August 16, 2013, including information regarding the
location of the generator. The production of the requested information was delayed by Plaintiff.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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Even without full disclosure of the requested information from Plaintiff, Plaintiff was
advised, on February 21, 2014, Defendant was not only seeking a visual inspection of the
generator but was requesting removal of the governor and shipment to Ohio for testing. Plaintiff
did not respond to this request for the inspection and removal of the governor. Additional
correspondence was sent on April 23, 2014 regarding the request for inspection with removal of
governor and shipment to Ohio for testing. (See Correspondence dated April 23, 2014, attached
to the Defendant’s Motion to Compel as Defendant’s Exhibit F). It was not until after Defendant
submitted the second formal request for the inspection and removal of the governor that Plaintiff
began requested the depositions of Defendant’s employees. Ironically, Plaintiff began requesting
the depositions in the same correspondence in which it refused to allow Defendant to conduct the
inspection and testing of the governor. (Exhibit G, attached to Defendant’s Motion to Compel).
This was two (2) months after Defendant requested the inspection and removal of the governor.
Even with Plaintiff ignoring Defendant’s discovery requests and request for inspection
and testing, Plaintiff wants to complain Defendant was not timely responding to a request for
deposition dates after Plaintiff finally produced records. Defendant was certainly timelier in a
response than Plaintiff and was attempting to review the in excess of eight hundred (800) pages
of records finally produced. In the response to Plaintiffs request for depositions, Defendant was
merely seeking the opportunity to discover the basis of the claims being asserted by Plaintiff
before the employees were subjected to cross-examination on those claims. In case Plaintiff has
forgotten, it has the burden of proof in this case.
The request for the depositions was not made until April 28, 2014. This is despite the
fact Plaintiff had Defendant’s disclosure of witnesses referenced in the motion since October 22,
2013 and Defendant’s responses to discovery since November 1, 2013. If Plaintiff required theoco12
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depositions of Defendant’s employees to develop the factual timeline, this would have been
evident months before Plaintiff started requesting the depositions.
Plaintiff has been provided with the documentation related to the work performed on the
generator, which includes the job quote, sales order, and service reports for all dates Defendant
performed any work. (See Defendant's Exhibit K, attached hereto). Plaintiff was also provided
with the detailed e-mail from Jeff Leach regarding the function of various parts within the
generator, diagrams regarding the various parts and photographs of the generator. (See
Defendant’s Exhibit L. attached hereto}. This information was all provided either prior to suit
and/or in response to Plaintiffs written requests for discovery.
Based upon the information provided by Defendant, the inspection and testing of the
governor would not be the next logical step. Plaintiff has denied Defendant the opportunity to
investigate the cause of the fire. If Plaintiff refuses to provide Defendant the access to the
generator which has been requested and the testing, the next logical source of the information for
Defendant to defend against the claims is the deposition of Plaintiff's expert before Defendant’s
employees are subjected to cross-examination. The motion of Plaintiff evidences Plaintiff also
wants to deny Defendant access to this information.
Plaintiff represented to Defendant the depositions of the employees of JD Power Systems
are necessary in order for Plaintiff to determine the cause of the fire. According to Plaintiffs
counsel, the only expert Plaintiff has identified, Richard Rosner, needs information from JD
Power Systems’ employees in order to set forth his opinions as to the cause of the fire. This is
also set forth in the motion. Plaintiff has been in sole possession of the generator since the
generator was removed from the AEP Substation in Marysville, Ohio. The generator was
removed shortly after the fire. Plaintiff was provided with a detailed explanation regarding theFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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issues with the generator from Jeff Leach of JD Power Systems in an e-mail dated December 12,
2012. (Exhibit L). Defendant should be permitted to proceed with the discovery it has requested
instead of being refused discovery and then compelled to submit its employees to depositions.
Plaintiff has indicated in discovery it inspected and may have performed testing on the
generator during the time Plaintiff has been in possession of the generator. However, despite the
fact Plaintiff has had all of this information, Plaintiff is still claiming it requires the depositions
of Defendant’s employees before determining the cause of the fire. Defendant advised it was
seeking the deposition of Richard Rosner to determine the basis upon which Plaintiff is claiming
Defendant was negligent. This would include but not be limited to his opinions as the expert on
behalf of Plaintiff to prove the allegations against Defendant. In conjunction with this request
for Mr. Rosner’s deposition, dates were provided by undersigned counsel for Mr. Rosner’s
deposition. The correspondence also advises once Plaintiff selected a date for Mr. Rosner’s
deposition the date(s) for the employees of JD Power Systems can be selected for after Mr.
Rosner’s deposition. A defendant should be entitled to discover the basis of the claim against it
before it is required to answer questions specifically directed at the claims by plaintiff.
Instead of agreeing to conduct the deposition of Mr. Rosner on one of the dates provided
by Defendant, Plaintiff noticed the employees of JD Power Systems for a deposition on the
earliest dates provided by Defendant for Mr. Rosner’s deposition. Defendant was left with no
choice but to notice the deposition of Mr. Rosner for the Friday prior to the dates noticed by
Plaintiff. It is incomprehensible as to how Plaintiff is seeking sanctions for the failure of the
employees of JD Power System to appear for depositions when Mr. Rosner did not appear for his
properly noticed deposition. Additionally, Plaintiff even quotes the correspondence of counselFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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for Plaintiff indicating it will reschedule the depositions to mutually convenient times. There is
no basis for seeking sanctions against Defendant.
Plaintiff has not selected new dates for the depositions. If the depositions of Defendant’s
employees were so essential, there is no explanation as to why Plaintiff waited until more than a
year after the litigation was initiated to request the depositions and more than six (6) months after
Defendant disclosed the witnesses. If the employees were so essential, it would have been
obvious sooner than April 28, 2014 that Plaintiff needed information from the individuals to
pursue its claims. Furthermore, courts do not favor ambush in civil litigation. The parties must
be permitted the reasonable opportunity to defend against contentions asserted by another party.
Shumaker y. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 371.
Based upon the foregoing, Plaintiff's motion to compel should be denied. Plaintiff has
denied Defendant the opportunity to investigate the claims being asserted against it.
Ill. CONCLUSION
The motion submitted by Plaintiff is untimely as it was filed beyond the discovery cut-off
deadline and should be stricken from the record. Additionally, the reply memorandum of
Plaintiff submitted should be stricken as untimely.
Prior to Plaintiff's request for the depositions, Plaintiff had denied Defendant the
opportunity to thoroughly investigate the cause of the fire. Defendant had been requesting an
inspection and testing of the generator for two (2) months prior to Plaintiff requesting
depositions. Plaintiff cannot delay discovery and deny Defendant the opportunity to investigate
the claims and then demand employees of Defendant appear for depositions. This is not the
manner in which discovery is to be conducted. As such, Defendant respectfully requests this
Court deny Plaintiff’s motion to compel the depositions and Plaintiff's request for sanctions.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876
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Respectfully submitted,
/s/ Heather R. Zilka
Heather R. Zilka (0070538)
Smith, Rolfes & Skavdahl Company, LPA
65 E. State Street, Suite 2000
Columbus, Ohio 43215
(614) 469-7130 - Telephone
(614) 469-7146 - Facsimile
hzilka@smithrolfes.com
Attorneys for Defendant, JD Power Systems LLC
CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of the foregoing was served this 14% day of
August, 2014, via the Court’s Electronic System upon the following:
Brian T. Johnson, Esq.
Rene Rimelspach, Esq.
Eastman & Smith, Ltd.
100 E. Broad Street, Suite 2100
Columbus, Ohio 43215
Counsel for Plaintiff
/s/ Heather R. Zilka
Heather R. Zilka (0070538)
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0c0O12 - E59 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CIVIL DIVISION North American Substation Services, LLC, : Plaintiff, v. : Case No. 13 CV003876 JD Power Systems, LLC, : Judge Timothy Horton Defendant. MEMORANDUM IN OPPOSITION OF DEFENDANT, JD POWER SYSTEMS, LLC, TO PLAINTIFF’S MOTION TO COMPEL DEPOSITIONS FILED ON JULY 31, 2014 I. PLAINTIFF’S MOTION TO COMPEL IS UNTIMELY The discovery cut-off date for this matter was July 28, 2014. Plaintiff did not file the motion to compel until three (3) days after the discovery cut-off. The Franklin County Local Rule 47.02, on discovery, specifically states: The discovery cutoff date specified in the Case Schedule shall be the last date for any party to seek the involvement of the Trial Judge in the discovery process by way of motion seeking a ruling, an order, sanctions, or other Court action, absent extraordinary circumstances. Voluntary, mutually agreed-upon discovery, including perpetuation of trial testimony by video tape or otherwise, may continue after the discovery cutoff in a manner that does not delay any other event on the case schedule. Plaintiffs motion to compel is untimely and should be stricken from the record. Plaintiff has already filed a reply memorandum in support of the motion to compel before Defendant’s time to oppose the motion to compel expired. Since the original motion is untimely, the reply memorandum should also be stricken from the record. Additionally, the reply memorandum appears to simply be an attempt by Plaintiff to file a surreply without seeking leave of Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0c012 - E60 Il. DEPOSITIONS OF THE PARTIES In the event the Court considers Plaintiff's motion to compel, Defendant submits the following argument in opposition to the motion and reply memorandum. The depositions of the witnesses were not requested until more than a year after Plaintiff initiated the litigation and more than six (6) months after Defendant’s disclosed the witnesses. Prior to Plaintiff's request for the depositions, Defendant had been prevented from fully investigating the claims asserted against it. Plaintiff should not be permitted to delay discovery, fail to disclose information requested and deny Defendant access to a reasonable inspection and testing and then attempt to compel employees of Defendant to appear for depositions. It appears Plaintiff wants to place Defendant at a disadvantage by failing to timely produce records and refuse to allow Defendant to fully inspect the cause of the fire prior to the depositions of Defendant’s employees. This type of gamesmanship is contrary to the purposes of discovery. Plaintiff was not being denied the opportunity to take the depositions of Defendant’s employees. Defendant was merely requesting it be afforded the opportunity to obtain information regarding the claims of Plaintiff before the depositions of the employees were conducted. The information before this Court in Defendant’s Motion to Compel the Inspection and Testing evidences the repeated attempts by Defendant to timely obtain the requested discover and inspection with testing. Defendant had initially requested an inspection of the generator prior to suit as there was no information available as to the location of the generator. After suit was filed, Defendant requested information and production of documents through written discovery submitted on May 8, 2013 and August 16, 2013, including information regarding the location of the generator. The production of the requested information was delayed by Plaintiff.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0co12 - E61 Even without full disclosure of the requested information from Plaintiff, Plaintiff was advised, on February 21, 2014, Defendant was not only seeking a visual inspection of the generator but was requesting removal of the governor and shipment to Ohio for testing. Plaintiff did not respond to this request for the inspection and removal of the governor. Additional correspondence was sent on April 23, 2014 regarding the request for inspection with removal of governor and shipment to Ohio for testing. (See Correspondence dated April 23, 2014, attached to the Defendant’s Motion to Compel as Defendant’s Exhibit F). It was not until after Defendant submitted the second formal request for the inspection and removal of the governor that Plaintiff began requested the depositions of Defendant’s employees. Ironically, Plaintiff began requesting the depositions in the same correspondence in which it refused to allow Defendant to conduct the inspection and testing of the governor. (Exhibit G, attached to Defendant’s Motion to Compel). This was two (2) months after Defendant requested the inspection and removal of the governor. Even with Plaintiff ignoring Defendant’s discovery requests and request for inspection and testing, Plaintiff wants to complain Defendant was not timely responding to a request for deposition dates after Plaintiff finally produced records. Defendant was certainly timelier in a response than Plaintiff and was attempting to review the in excess of eight hundred (800) pages of records finally produced. In the response to Plaintiffs request for depositions, Defendant was merely seeking the opportunity to discover the basis of the claims being asserted by Plaintiff before the employees were subjected to cross-examination on those claims. In case Plaintiff has forgotten, it has the burden of proof in this case. The request for the depositions was not made until April 28, 2014. This is despite the fact Plaintiff had Defendant’s disclosure of witnesses referenced in the motion since October 22, 2013 and Defendant’s responses to discovery since November 1, 2013. If Plaintiff required theoco12 E Fganklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 depositions of Defendant’s employees to develop the factual timeline, this would have been evident months before Plaintiff started requesting the depositions. Plaintiff has been provided with the documentation related to the work performed on the generator, which includes the job quote, sales order, and service reports for all dates Defendant performed any work. (See Defendant's Exhibit K, attached hereto). Plaintiff was also provided with the detailed e-mail from Jeff Leach regarding the function of various parts within the generator, diagrams regarding the various parts and photographs of the generator. (See Defendant’s Exhibit L. attached hereto}. This information was all provided either prior to suit and/or in response to Plaintiffs written requests for discovery. Based upon the information provided by Defendant, the inspection and testing of the governor would not be the next logical step. Plaintiff has denied Defendant the opportunity to investigate the cause of the fire. If Plaintiff refuses to provide Defendant the access to the generator which has been requested and the testing, the next logical source of the information for Defendant to defend against the claims is the deposition of Plaintiff's expert before Defendant’s employees are subjected to cross-examination. The motion of Plaintiff evidences Plaintiff also wants to deny Defendant access to this information. Plaintiff represented to Defendant the depositions of the employees of JD Power Systems are necessary in order for Plaintiff to determine the cause of the fire. According to Plaintiffs counsel, the only expert Plaintiff has identified, Richard Rosner, needs information from JD Power Systems’ employees in order to set forth his opinions as to the cause of the fire. This is also set forth in the motion. Plaintiff has been in sole possession of the generator since the generator was removed from the AEP Substation in Marysville, Ohio. The generator was removed shortly after the fire. Plaintiff was provided with a detailed explanation regarding theFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0C012 - E63 issues with the generator from Jeff Leach of JD Power Systems in an e-mail dated December 12, 2012. (Exhibit L). Defendant should be permitted to proceed with the discovery it has requested instead of being refused discovery and then compelled to submit its employees to depositions. Plaintiff has indicated in discovery it inspected and may have performed testing on the generator during the time Plaintiff has been in possession of the generator. However, despite the fact Plaintiff has had all of this information, Plaintiff is still claiming it requires the depositions of Defendant’s employees before determining the cause of the fire. Defendant advised it was seeking the deposition of Richard Rosner to determine the basis upon which Plaintiff is claiming Defendant was negligent. This would include but not be limited to his opinions as the expert on behalf of Plaintiff to prove the allegations against Defendant. In conjunction with this request for Mr. Rosner’s deposition, dates were provided by undersigned counsel for Mr. Rosner’s deposition. The correspondence also advises once Plaintiff selected a date for Mr. Rosner’s deposition the date(s) for the employees of JD Power Systems can be selected for after Mr. Rosner’s deposition. A defendant should be entitled to discover the basis of the claim against it before it is required to answer questions specifically directed at the claims by plaintiff. Instead of agreeing to conduct the deposition of Mr. Rosner on one of the dates provided by Defendant, Plaintiff noticed the employees of JD Power Systems for a deposition on the earliest dates provided by Defendant for Mr. Rosner’s deposition. Defendant was left with no choice but to notice the deposition of Mr. Rosner for the Friday prior to the dates noticed by Plaintiff. It is incomprehensible as to how Plaintiff is seeking sanctions for the failure of the employees of JD Power System to appear for depositions when Mr. Rosner did not appear for his properly noticed deposition. Additionally, Plaintiff even quotes the correspondence of counselFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0c0O12 - E64 for Plaintiff indicating it will reschedule the depositions to mutually convenient times. There is no basis for seeking sanctions against Defendant. Plaintiff has not selected new dates for the depositions. If the depositions of Defendant’s employees were so essential, there is no explanation as to why Plaintiff waited until more than a year after the litigation was initiated to request the depositions and more than six (6) months after Defendant disclosed the witnesses. If the employees were so essential, it would have been obvious sooner than April 28, 2014 that Plaintiff needed information from the individuals to pursue its claims. Furthermore, courts do not favor ambush in civil litigation. The parties must be permitted the reasonable opportunity to defend against contentions asserted by another party. Shumaker y. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 371. Based upon the foregoing, Plaintiff's motion to compel should be denied. Plaintiff has denied Defendant the opportunity to investigate the claims being asserted against it. Ill. CONCLUSION The motion submitted by Plaintiff is untimely as it was filed beyond the discovery cut-off deadline and should be stricken from the record. Additionally, the reply memorandum of Plaintiff submitted should be stricken as untimely. Prior to Plaintiff's request for the depositions, Plaintiff had denied Defendant the opportunity to thoroughly investigate the cause of the fire. Defendant had been requesting an inspection and testing of the generator for two (2) months prior to Plaintiff requesting depositions. Plaintiff cannot delay discovery and deny Defendant the opportunity to investigate the claims and then demand employees of Defendant appear for depositions. This is not the manner in which discovery is to be conducted. As such, Defendant respectfully requests this Court deny Plaintiff’s motion to compel the depositions and Plaintiff's request for sanctions.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Aug 14 6:19 PM-13CV003876 0cO12 - E65 Respectfully submitted, /s/ Heather R. Zilka Heather R. Zilka (0070538) Smith, Rolfes & Skavdahl Company, LPA 65 E. State Street, Suite 2000 Columbus, Ohio 43215 (614) 469-7130 - Telephone (614) 469-7146 - Facsimile hzilka@smithrolfes.com Attorneys for Defendant, JD Power Systems LLC CERTIFICATE OF SERVICE Thereby certify that a true and accurate copy of the foregoing was served this 14% day of August, 2014, via the Court’s Electronic System upon the following: Brian T. Johnson, Esq. Rene Rimelspach, Esq. Eastman & Smith, Ltd. 100 E. Broad Street, Suite 2100 Columbus, Ohio 43215 Counsel for Plaintiff /s/ Heather R. Zilka Heather R. Zilka (0070538)