Motion to Compel Discovery in CWG LLC vs DAYTON POWER AND LIGHT COMPANY| Trellis.Law

On March 15, 2013 a Party Discovery was filed involving a dispute between Cwg Llc, Dennis Williams, and Aes Corporation, Dayton Power And Light Company, for DAYTON POWER AND LIGHT COMPANY in the District Court of Montgomery County.

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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Monday, October 21, 2013 4:27:03 PM
CASE NUMBER: 2013 CV 01696 Docket ID: 18565957
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION

CWG, LLC, et al. : CASE NO. 2013 CV 1696

Plaintiffs, : JUDGE TIMOTHY N. O`CONNELL

vs. :

THE DAYTON POWER : PLAINTIFFS’ MOTION TO
& LIGHT COMPANY, et al. COMPEL PRODUCTION OF
: DOCUMENTS
Defendants.

Now come Plaintiffs, CWG, LLC, and Dennis Williams, by and through their counsel,

and move the Court to enter an Order compelling Defendant DP&L to produce documents

requested in discovery, as detailed below. As discussed in detail below, DP&L has not asserted

any legitimate privilege with regard to these documents, but has failed to produce them in

response to Plaintiff’s requests for production of documents. A memorandum in support

follows.

Respectfully submitted,

/s/ Dwight D. Brannon_____________________
Dwight D. Brannon (0021657)
Attorney for Plaintiff
BRANNON & ASSOCIATES
130 W. Second St. Suite 900
Dayton, Ohio 45402
Telephone: (937) 228-2306
Facsimile: (937) 228-8475
E-Mail: dbrannon@branlaw.com

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MEMORANDUM

Plaintiff originally sent written discovery requests to Defendant DP&L on April 4, 2013.

Those discovery requests included Requests for Production of Documents, attached here as

Exhibit 1. On April 30, 2013, Plaintiffs’ counsel sent a letter to Defendant’s counsel, requesting

several depositions of Defendant’s employees, and making it clear that Plaintiffs’ counsel needed

to receive written discovery responses prior to these depositions. Letter attached as Exhibit 2.

This letter also requested that the deponents bring with them to the depositions any requested

documents which had not been produced by that point.

On May 1, 2013, Plaintiff’s counsel received an e-mail from Defendant’s counsel, which

had responses to requests for admissions attached, and which stated that responses to

interrogatories and requests for production would “follow shortly,” as counsel was “compiling

the responsive documents.” E-mail attached as Exhibit 3. However, instead of providing

discovery responses, Defendant filed a motion to dismiss. In a letter dated May 10, 2013,

Plaintiff’s counsel pointed out to Defendant’s counsel that the motion to dismiss did “not toll the

time for [Defendant’s] discovery responses.” Letter attached as Exhibit 4. Plaintiffs’ counsel

stated that if he did not receive the responses to written discovery by the close of business on

May 13, 2013, he would file a motion to compel discovery.

Defendant’s counsel responded to this letter on May 13, 2013, claiming that he was not

aware of any discovery impasse, and stated that he would provide responses to written discovery

requests by May 17, 2013. Letter attached as Exhibit 5. Instead of providing documents on that

date, Defendant’s counsel sent Plaintiffs’ counsel an e-mail, asking Plaintiffs to stipulate to a

protective order before any documents were produced. Defendant DP&L produced written

discovery responses, but no documents, on or about May 30, 2013. Responses attached as

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Exhibit 6.

As the Court is aware, a few weeks later, and still without having produced any

documents, Defendant filed a motion for a protective order, asking that the Court stay discovery

until after Defendant’s motion to dismiss was decided. In so doing, Defendant managed to delay

its production of any documents until after the Court issued its written decision on the motion to

dismiss, on August 20, 2013. On September 10, 2013, the parties entered a stipulated protective

order. On September 12, 2013, four months after Defendant’s discovery responses were due,

Defendant finally produced a compact disk containing 868 pages of documents. Letter attached

as Exhibit 7.

In response to DP&L’s requests for production of documents, Plaintiffs produced over

four thousand pages of documents. Affidavit of Counsel Dwight D. Brannon, attached as

Exhibit 8, ¶ 2. In contrast, DP&L produced only 868 pages of documents in response to

Plaintiff’s requests for production. Ex. 8, ¶ 2. It is grossly unfair for DP&L to object to

producing the requested documents when Plaintiffs cooperated with DP&L’s own requests for

production so thoroughly.

The necessity for the production of the requested documents is demonstrated by the

questions directed to Plaintiffs and their employees at deposition. During the deposition of Mr.

Williams, on September 24, 2013, as well as the depositions of Dawn Rush and Randy Fritts on

September 25, 2013, between eighty and ninety percent of the questions directed at the

deponents by DP&L’s counsel referred to or utilized documents produced by Plaintiffs pursuant

to DP&L’s requests for production of documents. In the same way, Plaintiffs’ counsel needs to

have the relevant records in order to conduct the depositions of DP&L’s employees. In

particular, Plaintiffs need incident and accident reports, records, summaries, notations,

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memoranda, e-mails, reprimands and any other tangible or computerized documentation

regarding safety incidents and accidents regarding both DP&L’s employees, and all of its

contractors, especially those dealing with tree removal and line work, not just those dealing with

CWG. Plaintiff especially needs to receive those documents which were produced or reviewed

by the persons to be deposed, especially Terry Meeks, Ron Joseph, Mark Vest, Kathy Storm and

Richard Penrod. Many of the deposition questions to be posed to these deponents will come

from the documents produced by DP&L. Thus these documents are vital to Plaintiff’s ability to

complete discovery in this case.

I. DP&L’s discovery responses are insufficient.

The documents produced by DP&L do not include several important categories of

documents that were requested by Plaintiffs. Plaintiffs submitted forty-three requests for

production. Defendant objected to all but six of these requests. In most cases, DP&L responded

over objection. However, several important categories of documents, which are not protected by

any privilege, were not produced.

Specifically, in Request No. 2, Plaintiffs requested copies of complaints, dismissal entries

and settlement agreements regarding any and all civil suits in which DP&L has been a defendant.

DP&L objected claiming that the “Request is vague, ambiguous, overbroad, unduly burdensome,

unlimited in time and/or scope, lacks relevance, seeks confidential and proprietary information,

seeks information protected by attorney client and/or work product privileges, and is not likely to

the lead to the discovery of admissible evidence.” In fact, this is a common request, and is posed

by one party to another in many cases. Requiring a party, especially a party which is a business

entity, to identify past lawsuits and to produce relevant documentation, where the party is in

possession or control of that documentation, is a common, and reasonable, request.

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Nevertheless, DP&L simply refused to provide any of the requested documents other than

documents related to CWG itself.

In Request No. 4, Plaintiffs asked DP&L to produce copies of bids received for the work

that had been done by CWG, especially line clearance and utility services. DP&L claimed in its

response that it did not receive any bids for such work. However, since such work is necessary

for DP&L to continue to function, DP&L must have somehow retained some contractor to

perform the work that would have been done by CWG if not for DP&L’s breach of the relevant

contracts.

In Request No. 5, CWG asked for any records relating to the work that had been done by

CWG prior to DP&L’s breach, for the six months prior to the request. DP&L claimed that the

documents requested were “confidential and/or proprietary.” However, DP&L did not cite to

any particular privilege that would allow it to avoid producing such documents. An allegation

that a requested document is confidential or privileged, without any explanation of why, is not

sufficient to keep that document from discovery, especially where a protective order is in place

to ensure that the document or its contents are not misused. Hope Acad. Broadway Campus v.

White Hat Mgmt., LLC, 10th Dist. No. 12AP-116, 2013-Ohio-911, ¶24-27.

In Request No. 6, Plaintiffs requested all documents in DP&L’s possession or control

relating to CWG from the last five years. While DP&L produced purchase orders and contracts

related to CWG, it failed to produce copies of bids, billing, and other documents, none of which

are privileged.

In Request No. 8, Plaintiffs requested documents relating to Danny Caldwell, who did

audits for DP&L, for the last five years. DP&L simply responded that “documents responsive to

specific discovery requests are attached,” and failed to produce any documents responsive to this

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request.

In Request No. 9, Plaintiffs asked for copies of all master service agreements relating to

contractors working for DP&L for the previous five years. DP&L only produced the agreements

with CWG, not with any other contractors.

In Request No. 10, Plaintiffs asked for copies of agreements governing all of DP&L’s

Line Clearance contracts for the past five years. DP&L only produced the agreements with

CWG, not with any other contractors.

In Request No. 11, Plaintiffs requested copies of all incident reports reported to DP&L

since AES acquired DP&L. DP&L only produced the documents relating to CWG, not any other

contractors, DP&L employees or AES employees.

In Request No. 12, Plaintiffs requested copies of all incident reports reported to DP&L by

contractors for the last five years. DP&L only produced the documents relating to CWG, not any

other contractors.

In Request No. 13, Plaintiffs requested copies of documents regarding any formal safety

programs from any contractor operating under a Master Services Contract with DP&L from the

last five years. Again, DP&L only produced the documents relating to CWG, not any other

contractors.

In Request No. 14, Plaintiffs requested copies of Annual Background Investigation

Certifications for the past five years. DP&L only produced the documents relating to CWG, not

any other contractors.

In Request No. 15, Plaintiffs asked for copies of documents relating to any audit

performed by DP&L of any contractor working under a Master Services Agreement for the

previous five years. DP&L did not even produce documents relating to CWG, much less any

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other contractors.

In Request No. 16, Plaintiffs asked for copies of reports for all OSHA-recordable injuries,

vehicle accidents, etc. for any contractor working for DP&L for the previous five years. Again,

DP&L only produced the documents relating to CWG, not any other contractors.

In Request No. 17, Plaintiffs requested documents relating to any waiver of the

prequalification process for contracts with DP&L for the previous five years. DP&L did not

produce any records in response to this request.

In Request No. 22, Plaintiffs requested copies of all liability insurance policies that might

be used to satisfy a judgment in favor of Plaintiffs. DP&L did not produce any records in

response to this request, claiming that the request “is vague, ambiguous, overbroad, unduly

burdensome, unlimited in scope, lacks relevance, seeks confidential and proprietary information,

and is not likely to the lead to the discovery of admissible evidence.” Civ.R. 26(B)(2)

specifically makes insurance policies such as those requested by Plaintiffs discoverable. DP&L

has no excuse for failing to produce these documents.

In Request No. 25, Plaintiffs requested copies of all documents relating to any

disciplinary action taken against DP&L by any agency. DP&L objected, and refused to produce

any documents.

In Request No. 28, Plaintiffs requested copies of all documents relating to the termination

of any contractor operating under a Master Services Agreement or Line Clearance program with

DP&L for the last ten years. DP&L only produced the documents relating to CWG, not any

other contractors.

In Request No. 35, Plaintiffs requested copies of all documents relating to allegations of

“safety issues” with any other DP&L contractor operating under a Master Services Agreement

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for the past five years. DP&L only produced the documents relating to CWG, not any other

contractors.

In Request No. 36, Plaintiffs requested copies of any PUCO complaints relating to any

contractors working for DP&L for the previous five years. DP&L did not produce any records in

response to this request, claiming that the “Request is vague, ambiguous, overbroad, unduly

burdensome, unlimited in scope, lacks relevance, seeks confidential and proprietary information,

seeks information protected by attorney client and/or work product privileges, seeks information

outside the knowledge of the answering defendants, seeks public record information available to

plaintiffs, and is not likely to the lead to the discovery of admissible evidence.”

In Request No. 37, Plaintiffs requested copies of any documents referring to or relating to

any allegations of “safety issues” with any other contractor’s performance under DP&L's Line

Clearance Program for the last five years. DP&L objected, and over objection stated that it

would produce documents related to CWG, but failed to do so.

Finally, in Request No. 38, Plaintiffs requested documents supporting, contradicting, or

otherwise related to DP&L’s affirmative defenses raised in its Answer. DP&L did not produce

any records in response to this request.

A review of the objections that DP&L asserted with regard to these requests quickly

shows that the objections are formulaic, and not tailored to the individual requests for

production. DP&L’s blanket claims that all the requested documents are privileged is simply

unsupportable. For this reason, Plaintiffs request that the Court enter an Order compelling

DP&L to produce the requested documents.

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II. Standard for a Motion to Compel.

Ohio’s Civ.R. 26(B)(1) states that:

Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody, condition
and location of any books, documents, electronically stored information, or other
tangible things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.

As detailed above, Plaintiffs requested multiple documents from Defendant which DP&L has

simply failed to produce, without providing any support for its claims of privilege. Civ.R.

37(A)(2) states in pertinent part that:

if a party, in response to a request for inspection submitted under Rule 34, fails to
respond that inspection will be permitted as requested or fails to permit inspection
as requested, the discovering party may move for an order compelling an answer
or an order compelling inspection in accordance with the request.

Before filing a motion to compel, a party is required to “make a reasonable effort to resolve the

matter through discussion with the attorney, unrepresented party, or person from whom

discovery is sought.” Civ.R. 37(E). As demonstrated by the Affidavit of Counsel Dwight D.

Brannon, attached as Exhibit 8, Plaintiffs have made the required effort, but have been

unsuccessful in resolving the issue. Ex. 8, ¶¶ 3-5.

The law is very clear that a party may not withhold relevant documents which are

responsive to a document request. A court may award default judgment against the party who

withheld responsive documents and award attorneys’ fees and expenses incurred in connection

with the motion for sanctions. Associated Business Investment Corp. v. CTI Communications

Inc., 2d Dist. No. 19211, 2002-Ohio-6385; Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448

(E.D.Ohio 1995). A trial court’s sanctions against a party who engaged in discovery abuse are

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reviewed by the appellate court under an abuse of discretion standard. Nakoff v. Fairview Gen.

Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159, 662 N.E.2d 1.

The law is also clear that it is the burden of the party seeking to assert a privilege to

demonstrate that the requested information is privileged. Hope Acad. Broadway Campus v.

White Hat Mgmt., LLC, 10th Dist. No. 12AP-116, 2013-Ohio-911, ¶23. “A claim of privilege

‘must rest upon some specific constitutional or statutory provision.’” Id., quoting State ex rel.

Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990).

DP&L has not cited to any constitutional provision or statute that would make all of the

information discussed above privileged, and would exclude those documents from discovery.

Because DP&L has failed to cite to any “specific constitutional or statutory provision,” with

regard to its assertion of privilege, Plaintiffs are entitled to an order compelling DP&L to

produce the requested documents.

III. Conclusion.

As discussed above, DP&L has failed, without any excuse for doing so, to produce

documents Plaintiffs requested pursuant to Civ.R. 34. For this reason, Plaintiffs move the Court

to enter an Order compelling Defendant to produce the documents discussed above.

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Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on October 21, 2013, this document was electronically filed via the

Court’s authorized electronic filing system which will send notifications of this filing to the

following:

Matthew D. DiCicco, Esq.
FREUND, FREEZE & ARNOLD
Counsel for Defendant DP&L
1 South Main Street
Suite 1800
Dayton, OH 45402-2017
/s/ Dwight D. Brannon_________________
Dwight D. Brannon

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IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION

CWG, LLC, et al. : CASE NO. 2013CV1696

Plaintiffs, : JUDGE TIMOTHY N. O`CONNELL

vs. :

THE DAYTON POWER : PLAINTIFFS’ FIRST SET OF
& LIGHT COMPANY, et al. INTERROGATORIES AND FIRST
: REQUEST FOR PRODUCTION OF
Defendants. DOCUMENTS DIRECTED TO
ALL DEFENDANTS

Now come the Plaintiffs, by and through counsel, and propounds the following,

Interrogatories and Request for Production of Documents to all Defendants named in the caption

hereto, pursuant to Rules 26, 33, 34 and 36 of the Ohio Rules of Civil Procedure, to be answered

under oath as required by the aforementioned Rules within twenty-eight (28) days after the date

of service thereof.

I. INTRODUCTION AND PRELIMINARY INSTRUCTIONS

1). This discovery demand is a combined and interrelated submission of Interrogatories, and
Document Production as provided in Civ.R. 26(A), 33, 34 and 36. Additional discovery may be
predicated upon your responses by additional submissions in these categories or utilization of
Civ.R. 31 for depositions upon written questions; Civ.R. 32 for depositions upon oral
examination; physical examinations and/or inspections pursuant to Civ.R. 35, and in other means
identified as necessary to completely, expeditiously, and economically obtain all relevant
discovery, determine all evidence to arrive at a truthful disposition of the factual issues in the
case at bar. This discovery request is pursuant to the Ohio Rules of Civil Procedure, specifically
Civ.R. 26 through Civ.R. 37. Be assured that any request for relevant information, as provided
by the same rules, will be reciprocally considered and provided likewise pursuant to the same
Civil Rules. The efficient, inexpensive, and timely resolution of the facts by all parties is hereby
sought. Discovery is in integral part of any litigation and is the only real means of resolving
complex cases. Hickman v. Taylor (1947), 329 U.S. 495; Kennedy v. Chafin (1974) 38 Ohio
St.2d 85. Discovery hereby requested is also expected to timely and completely identify all

EXHIBIT 1
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witnesses, including parties, and the subject matter of their testimony so that they can be deposed
under the Civil Rules.

2). A refusal to provide information in this case pursuant to Civ.R.26(C) requires the person that
refused to make said disclosure to make a reasonable effort to resolve the matter through
discussion with plaintiffs’ attorney herein. If there are any questions, concerns, or problems,
please have your attorney call, write or fax Plaintiffs’ attorney promptly with your concern so
that we may discuss it as soon as possible. If we do not resolve it informally, have your attorney
place your concerns in writing to Plaintiffs’ counsel and he will specifically address it. This
pleading, any communications, appropriate affidavits and supporting materials will be utilized
for submission, or response to, any motion or pleading to the court on discovery issues. This
discovery request is extremely important to this case and all good faith efforts will be
utilized to obtain same. This is not simply a formatted or pattern request. It has been
carefully reviewed for this particular case. It cannot be ignored pursuant to law and timely
completion will assist all the parties in resolving the case.

3). This combined discovery request is interrelated and includes the following: (1) Request for
Admissions; (2) special Interrogatories which may include therein special document requests; (3)
general Interrogatories; (4) general and specific document requests. Additionally, Plaintiffs are
hereby demanding discovery of all relevant matters known (or obtainable upon reasonable
inquiry), as required by Civ.R. 26 through 37 and all local rules of discovery, to the Defendant(s)
named in the caption hereto, their attorney(s), agents, assigns, independent contractor(s), those
experts specifically retained for litigation and/or trial,witnesses, or anyone else known to or
ascertainable by the defendants at this time or who becomes known or ascertainable in the future.

4). The scope of discovery in this case is within the parameters of, and permissible under, Civ.R.
26(B)(1). Any matters not privileged and related to the subject matter involved in the pending
action, where it relates to the claim or defense of the party seeking discovery, or to the claim of
any party, including the existence, description, nature, custody, condition, or location of any
books, documents, or other tangible things, as well as the identity and location of persons having
knowledge of any discovery matter, is sought. It is not ground for objection(s) that the
information sought will be inadmissible at trial, if the information appears reasonably
calculated to lead to the discovery of admissible evidence. Civ.R. 26(A) requires the
disclosure of adverse information and unfavorable matters, or aspects of the case, by all parties
upon written request, as well as any favorable matters and aspects as all relevant evidence is
certainly necessary to ascertain the truth. Civ.R. 26(B), (C), (D); 30(B)(1), (5); 33(A), (B), (C),
(D); 34(A), (B); 35(B); 36(A). Ex parte Oliver (1962), 173 Ohio St. 125; Insulation Unlimited,
Inc. v. Two J’s Properties, Ltd. (1997) 95 Ohio Misc.2d 18.

5). Pursuant to Civ.R. 33 (D), interrogatories are made so that there is sufficient space after each
interrogatory to type an answer. You are instructed to set forth of your answer in said space and
not type an answer separately. However, if after utilizing all the space provided in the particular
interrogatory, additional space is needed, indicate at the end of the space provided that you are
continuing your answer on a separate sheet of paper. Additionally, under this circumstance,
where additional space is needed, you may continue your answer on a separate sheet(s) of paper

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provided the separate sheet(s) of paper is numbered to reflect the interrogatory to which you are
continuing your response and, further, attach the extra sheet to the page on which the original
interrogatory.

6). Pursuant to Civ.R. 33(A), the party who is submitting the interrogatories may move for an
order, under Civ.R. 37, with respect to any objection to or other failure to answer an
interrogatory.

7). A party is entitled to complete and thorough responses to the interrogatories (and other
discovery requests), not merely responses citing general objections because such general
objections work impermissible, ineffective responses. See In re Folding Carton Antitrust
Litigation (N.D.Ill.1979), 83 F.R.D. 260; White v. Beloginis (S.D.N.Y.1971), 53 F.R.D. 480;
Zatko v. Rogers Mfg. Co. (N.D.Ohio 1964), 37 F.R.D. 29. An evasive answer is a failure to
answer. CSX Trans. Inc. v. May (C.A.6 1990), 919 F.2d 738 (TABLE), 1990 WL 197834.
Complex litigation can only be successfully completed if all the discovery requirements
were met. TIF Instruments, Inc. v. Colette (C.A.6 1983), 713 F.2d 197, 199.

8). You are reminded that failure to provide evidence and intentional withholding of evidence is
an ethical violation and subject to, not only sanctions, but also to disciplinary action by the Ohio
State Supreme Court. See Cincinnati Bar Assn. v. Marsick (1998), 81 Ohio St.3d 551. Other
sanctions may be imposed pursuant to Civ.R. 37 for any failure to provide timely and complete
discovery. National Hockey League v. Metropolitan Hockey Club, Inc. (1976), 427 U.S. 639; In
re Family Resorts of America, Inc. (C.A.6 1992), 972 F.2d 347 (TABLE), 1992 WL 174539
(failure to properly respond to interrogatories); Bank One of Cleveland, N.A. v. Abbe (C.A.6
1990), 916 F.2d 1067 (same); Regional Refuse Systems, Inc. v. Inland Reclamation Co. (C.A.6
1988), 842 F.2d 150, 154; Patton v. Aerojet Ordinance Co. (C.A.6 1985), 765 F.2d 604; Cine
Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp. (C.A.2 1979), 602 F.2d 1062,
1066; Monogram Models, Inc. v. Industro Motive Corp. (C.A.6 1974), 492 F.2d 1281 (failure to
properly respond to interrogatories); Bratka v. Anheuser-Busch Co., Inc. (S.D.Ohio 1995), 164
F.R.D.448; In re Folding Carton Antitrust Litigation (N.D.Ill.1979), 83 F.R.D.260 (failure to
properly respond to interrogatories).

9). Pursuant to Civ.R. 33(B), an interrogatory otherwise proffered is not objectionable merely
because an answer to the interrogatory involves opinion, contention, or legal conclusion, but only
upon a showing of good cause, the court may order that such an interrogatory be answered at a
later time, or after the designated discovery has been completed, or at a pretrial conference. If
you have relied on any factual matters in your answer, defenses, motions, or prior pleadings, you
must upon request set forth completely all legal and factual basis for same.

10). Pursuant to Civ.R. 37(A)(2), an appropriate motion will be filed if, in fact, you fail to
answer a question propounded or submitted under Civ.R. 30 or Civ.R. 31 or fail to answer
interrogatories submitted under Civ.R. 33. Note that an evasive or incomplete answer is
considered to be a failure to answer pursuant to Civ.R. 37(A)(3). Pursuant to Civ.R. 37(A)(4),
reasonable expenses incurred, including attorney’s fees, shall be sought. Therefore, if,in fact,
you fail to respond, or fail to respond fully, or if a response is untimely, substantial justification
should be set forth for such a failure in your response.

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11). All information, responses and answers (regardless of the form thereof) are to be made
upon good faith inquiry and based upon all information available or reasonably obtainable. This
requirement is particularly true where the location of information is reasonably available to you
through inquiry or identification of the custodian. Additionally, the custody should be identified
if you unable to set forth the information and you cannot otherwise respond as to its location
and/or custody. Simply stating that someone else has the information is not a sufficient response
under the law.

12). If the information cannot be provided with certainty, then the answer should be noted as
such with the reason for the uncertainty or confusion specified and a list of potential authors of
the requested document or information, and/or a range of dates of authorship, noting your
basis/reason for the identification you provided.

13). In your answer or response to a discovery request, in any reference to any diagram,
photographs, video tape, audio tape, reproduction, surveillance material or other like and similar
information, you must include the date the same was made and/or created, the circumstances
which gave rise to the material, the person who created it, and whether it is a fair and accurate
representation. If any such item will be created, including surveillance material of the
Plaintiff(s), or others associated with this case, please indicate where, when, by whom, and the
circumstances which will give rise to the material. Also supply an exact copy of same.
Additionally, if there are notes, writings, or printings you must provide, in writing, the name of
the author and the date of same (if not specified thereon), even if titled or untitled and/or undated
or dated.

14). Additionally, any information requested must be supplied before the deposition of any
witness (lay or expert) who is basing, or should base, his testimony on this information.

15). Pursuant to Civ.R. 26(B)(2), where there is a request for any type of insurance policy,
agreement, or other related documents, the request is such that it anticipates discovery of the
existence and contents of any and all insurance agreements which the Defendant(s) is carrying on
any insurance business, other business, or relationship such that said person or entity may be
liable to satisfy part or all of the judgment which may be entered in the action, including
excessive coverage, coinsurance, self-insurance, uninsured/underinsured coverage, collateral
insurance; also including any other company, entity, person or party upon which a theory of such
coverage can be based. You must also identify any party that you believe has an interest or a
potential interest as a subrogor, indemnitor or successor in interest by any other means. This, of
course, includes any insurance, corporation, or third-party payor.

16). Pursuant to Civ.R. 26(B)(4)(b), any interrogatory, request for admission, or production of
document request (including providing expert reports) which relies upon, or requires for its
answer/response, information from any expert retained or specially employed by Defendant(s) in
anticipation of litigation or preparation for trial, shall be understood as requiring identification of
that expert and each person the Defendant(s) expects to call as an expert witness at trial on that
subject matter and, further, to require you to state the subject matter on which the expert is
expected to testify. You are reminded that with identification of any expert, any party is entitled

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to information on facts known or opinions held by the expert that are relevant to the stated
subject matter. Discovery of the experts’ opinions and the grounds therefore is restricted to the
information/testimony previously given by the expert and/or supplied by the Defendant(s).

17). In answering/responding to discovery request, Plaintiff(s) should not in any way be misled
as to the contents and/or meaning of an answer because of reproduction, production, presentation
or otherwise. If there is color coding, markings, etc., that are distinguishable on the original, but
not on the copy, you must so color code or mark the copy produced to Plaintiff(s), and/or call
attention to the Plaintiffs’ counsel, in writing, specifically the facts or differences from the
original. This is true of any matter that is presented, in any manner, which differs from the
original. Plaintiff(s) recognizes that difficulties may arise with responses that include
photographs, videos, diagrams, computer printouts, computer programs and other information. If
there are any doubts, you are instructed to call it to Plaintiff(s)’ counsel’s attention so a personal
inspection can be made and discussion on the pertinent matters be conducted, so that all the
parties are fully informed.

18). Note that an evasive or incomplete answer is considered to be a failure to answer
pursuant to Civ.R. 37(A)(3).

19). A refusal to provide any information in this case, pursuant to Civ.R. 26(C), requires the
person that refused to make said disclosure make a reasonable effort to resolve the matter
through discussion with the attorney for Plaintiff(s). Please call or fax me promptly to discuss,
or to arrange a time for discussion of

Case Info

Case No.

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Document Filed Date

October 21, 2013

Case Filing Date

March 15, 2013

County

Parties

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Party Discovery: CWG LLC vs DAYTON POWER AND LIGHT COMPANY

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