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e-filed on 12/22/2014 at 04:36 PM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
J.M. SMUCKER LLC, } CASE NO. 2014 CVC H000212
Plaintiff, } JUDGE SPITLER
v. )
) PLAINTIFF J.M. SMUCKER LLC’S
ELLIOTT MANUFACTURING COMPANY, } MOTION TO COMPEL DISCOVERY
Defendant. )
Plaintiff JM. Smucker LLC (“Smucker”), by and through its counsel and pursuant to
Rule 37(A) of the Ohio Rules of Civil Procedure, respectfully requests that this Court issue an
Order compelling a response from Defendant Elliott Manufacturing Company (“Elliott”) to
Smucker’s discovery requests. Smucker has made several attempts to resolve this discovery
dispute without the involvement of the Court, but, to date, Elliott has failed to fulfill its promise
to respond to Smucker’s discovery requests. Smucker has no further recourse but to move to
compel a discovery response. The grounds for this Motion are more fully set forth in the
Memorandum attached hereto and incorporated herein.Respectfully submitted,
/s/ Chelsea R. Mikula
Kevin M. Young (0029715)
Karl A. Bekeny (0075332)
Chelsea Mikula (0086453)
Tucker Ellis LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
Tel: 216.592.5000
Fax: 216.592.5009
E-mail: _kevin.young@tuckerellis.com
karl.bekeny@tuckerellis.com
chelsea.mikula@tuckerellis.com
Attorneys for Plaintiff J.M. Smucker LLCIN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
J.M, SMUCKER LLC, CASE NO. 2014 CVC H000212
Plaintiff, } JUDGE SPITLER
v. )
)
ELLIOTT MANUFACTURING COMPANY, ) FRAtSTIEE LM. SMUCKER ELC S os
2 MOTION TO COMPEL DISCOVERY
Defendant. ) OOS SO aaewerwsTweeomoses
)
L INTRODUCTION
Defendant Elliott Manufacturing Company (“Elliott”) has yet to respond to Plaintiff J.M.
Smucker LLC’s (“Smucker”) First Set of Interrogatories and First Request for Production of
Documents, which were served on Elliott by regular U.S. mail and email on September 19, 2014.
(See Mikula Affidavit, attached as Exhibit 1.)! Since serving these requests, Smucker’s counsel
has been in regular contact with Elliott’s counsel. Elliott’s counsel did agree to respond to
Smucker’s discovery requests, however, Elliott has yet to fulfill its promise. Smucker has
granted reasonable extensions but cannot wait any longer with the upcoming dispositive motion
and trial deadlines that Smucker intends to comply with.
IL. SUMMARY OF ARGUMENT
Smucker’s Motion to Compel should be granted for the following reasons:
e Elliott has failed to respond to Smucker’s First Set of Interrogatories and First
Request for Production of Documents that were served in September of this year;
and
1 Elliott did respond to the Requests for Admission included in the discovery requests on October 16, 2014.«© Smucker has satisfied the requirements of Rule 37(E) of the Ohio Rules of Civil
Procedure by first making a "reasonable effort" to resolve the discovery dispute
with opposing counsel before seeking assistance from the Court.
TI. LAW AND ARGUMENT
A. Elliott Has Not Responded To Smucker’s First Set_of Interrogatories and
First Request for Production of Documents.
On September 19, 2014, Smucker served Elliott with its First Set of Interrogatories and
First Request for Production of Documents. (See Exhibit 1.) Pursuant to Rules 33 and 34 of the
Ohio Rules of Civil Procedure, Elliott had until October 17, 2014, to respond to Smucker’s
discovery requests. At the request of Elliott, Smucker granted a 30 day extension, making the
responses due November 17, 2014. (Id.) It has been over a month since the discovery responses
were due and Elliott has still not served responses. (Id.) With a discovery cut-off and dispositive
motion deadline of February 26, 2014, Smucker needs Blliott’s written responses and any
responsive documents without further delay.
B. Smucker Satisfied The Requirements Of Ohio Civil Rule 37(E) By
Attempting To Resolve This Discovery Dispute With Opposing Counsel
Before Involving The Court.
Rule 37(E) of the Ohio Rules of Civil Procedure requires that a party moving to compel
discovery first make a "reasonable effort" to resolve the discovery dispute with opposing
counsel. Smucker made several attempts to resolve this discovery dispute before filing this
Motion, including, but not limited to: (1) on December 4, 2014, Smucker’s counsel sent Elliott’s
counsel an email requesting an update on the status of discovery which Smucker’s counsel
indicated would be received by December 12, 2014; (2) on December 15, 2014, Smucker’s
counsel again asked when the discovery responses would be received to which Elliott’s counsel
responded that he did not have a firm date of when the discovery would be produced. (See
Exhibit 1.)Smucker has granted reasonable extensions and has tried to resolve this issue with
Elliott’s counsel. A date uncertain to produce discovery, however, will not work given the
upcoming discovery cut-off and dispositive motion deadline. Smucker has no choice but to seek
the assistance of the Court to ensure the discovery is produced so that the other deadlines in this
case are met.
IV. CONCLUSION
Elliott has failed to respond to Smucker’s First Set of Interrogatories and First Request
for Production of Documents. For this reason, Smucker requests that this Court issue an Order
compelling a response to its First Set of Interrogatories and First Request for Production of
Documents.
Respectfully submitted,
4s/ Chelsea R. Mikula
Kevin M. Young (0029715)
Karl A. Bekeny (0075332)
Chelsea Mikula (0086453)
Tucker Ellis LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
Tel: 216.592.5000
Fax: — 216.592.5009
E-mail: kevin.young@tuckerellis.com.
karl.bekeny@tuckerellis.com
chelsea.mikula@tuckerellis.com
Attorneys for Plaintiff J.M. Smucker LLCPROOF OF SERVICE
This certifies that a true and accurate copy of the foregoing Plaintiff’s Motion to Compel
was served on December 22, 2014, pursuant to Civ.R. 5(B)(2)(f) by e-mail to:
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
E-Mail: dck@kckblaw.com
Attorney for Defendant
Elliott Manufacturing Company
/s/ Chelsea R. Mikula
Kevin M. Young (0029715)
Karl A. Bekeny (0075332)
Chelsea Mikula (0086453)
Tucker Ellis LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
Tel: — 216.592.5000
Fax: 216.592.5009
E-mail: _kevin.young@tuckerellis.com
karl.bekeny@tuckerellis.com
chelsea.mikula@tuckerellis.com
Attorneys for Plaintiff I.M. Smucker LLCState of Ohio )
ss:
County of Cuyahoga )
AFFIDAVIT OF CHELSEA R. MIKULA
Chelsea R. Mikula, being first duly sworn according to law states as follows:
1. I am an attorey with the law firm of Tucker Ellis LLP and am licensed to
practice in all courts in the State of Ohio.
2. My Affidavit is given on personal knowledge and I am competent to give this
Affidavit.
3. Tam one of the attorneys of record for JM. Smucker LLC in connection with the
case of J.M. Smucker LLC vy. Elliott Manufacturing Company, Wayne County Common Pleas
Court Case No. 2012 CVC H000212.
4. On September 19, 2014, my firm served Defendant Elliott Manufacturing with
Elliott’s First Set of Interrogatories and First Request for Production of Documents via regular
U.S. mail and email making Plaintiff’s responses due on or before October 17, 2014. (Exhibit
A)
5. On October 16, 2014, counsel for Elliott, David Knowlton, requested a 30-day
extension to respond to the discovery.
6. Smucker granted the extension making Elliott’s discovery responses due on or
before November 17, 2014.
7. No responses had been received, so on December 4, 2014, I contacted Mr.
Knowlton via email to check on the status. (Exhibit B.)
8. We exchanged several emails and Mr. Knowlton confirmed the discovery
responses would be received by December 12, 2014. (Id.)
2191408.1 EXHIBIT 19. When no responses were received, I again followed up with Mr. Knowlton via
email on December 15, 2014. (Exhibit C.)
10. | Mr. Knowlton responded that he did not have a date certain the discovery would
be received by. (Id.)
11. Ihave received no further communications from Mr. Knowlton.
Affiant further sayeth naught. lube:
Chelsea R. Mikula
12.
SWORN TO AND SUBSCRIBED in my presence this 22 day of December, 2014.
en t Hirt
NOTARY PUBLIC
2191408.1IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
J.M. SMUCKER LLC
Plaintiff,
CASE NO. 2014 CVC-H 000212
JUDGE COREY E. SPITLER
V. PLAINTIFF J.M. SMUCKER LLC’S
FIRST SET OF INTERROGATORIES,
REQUESTS FOR ADMISSION, AND
REQUESTS FOR PRODUCTION OF
DOCUMENTS PROPOUNDED UPON
DEFENDANTELLIOTT
MANUFACTURING COMPANY
ELLIOTT MANUFACTURING COMPANY
Defendant.
eee eee we
Pursuant to Rules 33 and 36 of the Ohio Rules of Civil Procedure, Plaintiff J.M.
Smucker, LLC (“Plaintiff’) requests that Defendant Elliott . Manufacturing Company
(“Defendant”) answer the following interrogatories and requests for admission in writing and
under oath and serve such answers on Plaintiff within twenty-eight (28) days after service.
Additionally, pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Plaintiff requests that the
production of documents and any written response be made within twenty-eight (28) days of the
service of these requests by mailing a copy of all requested documents and your written response
to Chelsea R. Mikula, Tucker Ellis LLP, 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113.
SCOPE OF INFORMATION SOUGHT
In answering these discovery requests, Defendant must furnish all information and
documents available to it, including information and documents in the possession of its
employees, agents, attorneys, investigators and all other persons acting on its behalf. If
Defendant cannot answer the discovery requests in full after due diligence to secure the
information, so state and answer to the extent possible, specifying Defendant’s inability to
EXHIBIT Aanswer the remainder, and providing whatever information, documents, and/or knowledge it has
concerning the unanswered portions.
CLAIMS OF PRIVILEGE
If Defendant claims some privilege as a ground for non-production of any document or
for refusal to answer an interrogatory or request for admission, it shall set forth with respect to
the document or communication its date, author, addressee or recipient, if any, title, type of
tangible thing (letter, memorandum, telegraph, chart, report, tape recording, etc.), if appropriate,
its subject matter (without revealing the information as to which privilege is claimed) with
sufficient specificity to permit the Court to make a full determination whether the claim of
privilege is valid, and each and every factor upon which Defendant claims privilege.
CONTINUING NATURE
The discovery requests that follow are to be considered as continuing pursuant to Rule
26(E) of the Ohio Rules of Civil Procedure, and Defendant is requested to provide, by way of
supplementary answers hereto, such additional information and documents as Defendant, or any
other person acting on its behalf, may hereafter obtain, which will augment or otherwise
supplement its answers and responses now given to the interrogatories or requests for production
of documents below.
DEFINITIONS
As used herein, the following terms shall have the meaning indicated below:
1 “You,” “your,” “Elliott,” and “Defendant” shall refer to Elliott Manufacturing
Company its agents, employees, representatives, attorneys and/or all other persons acting or
purporting to act with it or on its behalf.
2. “Smucker” or “Plaintiff” shall refer to J.M. Smucker LLC its agents, employees,
representatives, attorneys, and/or all other persons acting or purporting to act with it or on itsbehalf.
3. “Sales Agreement” refers to the June 15, 2012 agreement entered into between
JM. Smucker LLC and Elliott Manufacturing Company and attached to these Discovery
Requests as Exhibit 1.
4. “Equipment System” shall refer to the Equipment System Elliott agreed. to
provide to Smucker pursuant to the June 15, 2012 Sales Agreement,
5. “Lawsuit” refers to Case No. 2014 CVC-H 000212 filed in the Court of Common
Pleas for Wayne County, entitled ..M Smucker LLC y, Elliott Manufacturing Company.
6. “Person” means natural persons, corporations, partnerships, sole proprietorships,
unions, associations, federations, government agencies, or any. other type of entity.
7. “Document” means any printed, typewritten, handwritten, or otherwise recorded
matter of whatever character, such as electronically stored information, including drafts of same
and, includes, but is not limited to, letters, booklets, certificates of title, forms, memoranda,
telegrams, notes, catalogs, brochures, diaries, reports, calendars, interoffice communications,
electronic mails, attachments to electronic mails, computer records, statements, spreadsheets,
announcements, photographs, audio or video tape recordings, motion pictures and any carbon,
photographic, or electronic copies of any such material if Defendant does not have custody or
control of the original.
8. The word “correspondence” shall include any and all forms of communication
including, but not limited to, conversations, conferences, video conferences, meetings and other
face-to-face communications, telephone calls and other forms of verbal or oral communication,
correspondence, telegrams, faxes, electronic mail, letters and all other forms of written
communication.9. | When used herein, plural terms shall include the singular and singular terms shall
include the plural.
10. When used herein, conjunctive terms (e.g., “and”) shall include the disjunctive
(e.g., “or”) and disjunctive terms shall include the conjunctive.
11. The term “relating to” or “relate to” shall mean consisting of, referring to,
reflecting, pertaining to, or in any way logically or factually connected with the matter discussed.
A document “relating to” or “related to” a given subject is any document identifying, showing,
referring to, dealing with, evidencing, commenting upon, having as a subject, describing,
summarizing, analyzing, explaining, detailing, outlining, defining, interpreting or pertaining to
that subject, including, without limitation, documents referring to the presentation of other
documents,
REQUESTS FOR MISSION
1. Admit that attached hereto as Exhibit 1 is a true and accurate copy of the Sales
Agreement entered into between Smucker and Elliott on June 15, 2012 (“Sales Agreement”).
RESPONSE:
2. Admit that pursuant to the Sales Agreement Elliott agreed to provide a “complete
and fully functional Equipment System” to Smucker.
RESPONSE:
3. Admit that Elliott failed to provide a “complete and fully functional Equipment
System” to Smucker as required by the Sales Agreement.
RESPONSE:4. Admit that Smucker paid Elliott approximately $309,420 for the Equipment
System.
RESPONSE:
5. Admit that Elliott never delivered the Equipment System to Smucker and
continues to have possession of the Equipment System.
RESPONSE:
6. Admit that Elliott has retained the approximately $309,420 paid by Smucker.
RESPONSE:
7. Admit that attached hereto as Exhibit 2 is a true and accurate copy of the August
20, 2013 letter from Elliott’s President, Terry Aluisi, to Mr. Andrew at Smucker.
RESPONSE:
8. Admit that Elliott’s effort to manufacture “a complete and fully functional
Equipment System” was “unsuccessful.”
RESPONSE:
9. Admit that Elliott agreed to fully refund Smucker all monies received for the
purchase of the Equipment System.
RESPONSE:10. Admit that Elliott has failed to refund Smucker any amount paid for the
Equipment System.
RESPONSE:
11. Admit that Smucker terminated the Agreement on August 27, 2013.
RESPONSE:INTERROGATORIES
1. Identify each person who answered or assisted in answering these discovery
requests.
RESPONSE:
2. Identify all persons having information concerning or relating in any way to the
subject matter of this Lawsuit and, for each person so identified, state to the best of your ability
the specific subject of the information, and identify and produce all documents relating to that
person’s knowledge or information.
RESPONSE:
3. State the name, address and telephone number of each potential expert witness,
the substance of the facts and opinion(s) to which. the expert is expected to testify, provide a
summary of the grounds for each opinion, and identify and produce all documents on which each
expert witness relies for the basis of his/her opinion(s), including, but not limited to, each
expert’s report (and any draft report(s)).
RESPONSE:
4, State the name, address, telephone number, and substance of the testimony of
each of your potential witnesses (other than expert witnesses).
RESPONSE:
5. Identify all exhibits that you will introduce at any deposition, hearing, or at the
trial of this matter.
RESPONSE:6. Identify any third party who you assert is responsible, in whole or in part, for the
Equipment System failing to comply with specifications and or production as alleged in your
Tenth Affirmative Defense.
RESPONSE:
7. Identify each and every reason you deny Smucker’s allegation in Paragraph 12 of
the Complaint that the Equipment System never performed according to specification.
RESPONSE:
8. Identify each and every reason you deny Smucker’s allegations in Paragraph 15 of
the Complaint that the Equipment System was never delivered to Smuckers and that Elliott has
failed and/or refused to pay Smuckers for the resulting damages incurred.
RESPONSE:
9. Identify each and every reason you deny Smucker’s allegation in Paragraph 16 of
the Complaint that Smucker terminated the Sales Agreement.on August 27, 2013.
RESPONSE:
10. If you deny any of the Requests for Admission, in whole-or in part, please state
’ the reason for your denial.
RESPONSE:REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Produce all documents you intend to rely on or introduce at any deposition,
hearing, or trial of this matter.
RESPONSE:
2. Produce all documents and communications between Elliott and Smucker related
to the Equipment System.
RESPONSE:
3. Produce all design drawings, reports, memorandums, or other documents
regarding the Equipment System.
RESPONSE:
4. Produce all internal communications regarding the Equipment System.
RESPONSE:
5. Produce all documents provided to any expert(s).
RESPONSE:
6. Produce any documents that support your Answer to Plaintiffs Complaint.
RESPONSE:
7. Produce any documents evidencing your attempts to sell the Equipment System.
RESPONSE:Respectfully submitted,
kevin. young@tuckerellis.com
Karl Bekeny (0075332)
karl.bekeny@tuckerellis.com
Chelsea R. Mikula (0086453)
chelsea.mikula@tuckerellis.com
Tucker Ellis LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Telephone: 216.592.5000
Facsimile: 216.592.5009
Attorneys for Plaintiff J.M. Smucker LLC
10PROOF OF SERVICE
Plaintiff JM. Smucker LLC’s First Set of Discovery Requests Propounded Upon
Defendant Elliott Manufacturing Company have been served upon David C. Knowlton, Attorney
for Defendant Elliott Manufacturing Company, Kennedy, Cicconetti, Knowlton & Buytedyk,
LPA, 558 North Market Strect, Wooster, Ohio 44691 this 19th day of September, 2014 by
regular U.S. mail, postage prepaid, and electronic mail to dck@kckblaw.com.
Kevin Young ( 715)
kevin.young@tuckerellis.com
Karl Bekeny (0075332)
karl.bekeny@tuckerellis.com
Chelsea R. Mikula (0086453)
chelsea.mikula@tuckerellis.com
Tucker Ellis LLP
950 Main Avenue, Suite 1100
Cleveland, OH 44113
Telephone: 216.592.5000
Facsimile: 216.592.5009
Attorneys for Plaintiff .M. Smucker LLC
11Mikula, Chelsea R.
From:
Sent:
To:
Subject:
Dave,
Mikula, Chelsea R.
Thursday, December 04, 2014 5:07 PM
‘David C. Knowlton’
RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Thanks for the update. This email will confirm that we expect responses to the requests for production as well as the
interrogatories and any responsive documents by no later than Friday, December 12.
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Thursday, December 04, 2014 12:58 PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
You’re welcome Chelsea. Again thanks for your patience.
California counsel has indicated discovery responses should be to me by the end of next week. | will forward
them to you upon my receipt.
Thanks again, and if you have any further questions, please let me know.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you are not the intended recipient, you must: (1)
Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all
associated attachment files from all individual and network storage devices; and (3) Refrain from copying
or disseminating this communication by any means.
1
EXHIBIT BFrom: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com
Sent: Thursday, December 04, 2014 10:23 AM
To: ‘David C. Knowlton’
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
Appreciate the response. We are e-filing so | will sign put your electronic signature in. Appreciate you getting
back to me. Please keep me posted on discovery. Hopefully | can provide an update to my client by weeks end
of when we can expect discovery.
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Thursday, December 04, 2014 10:12 AM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Chelsea,
As to the discovery, | am still awaiting confirmation.
Thanks, and my apologies for the delay.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.comThis is a privileged and confidential communication. If you are not the intended recipient, you
must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including
deletion of all associated attachment files from all individual and network storage devices; and (3)
Refrain from copying or disseminating this communication by any means.
From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com:
Sent: Thursday, December 04, 2014 9:10 AM
To: ‘David C. Knowlton’
Cc: Bekeny, Karl
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
Any update from California counsel yesterday? | know you have been diligent in trying to get a response
but as | indicated yesterday, my client is losing patience. If they met on Tuesday I’m not sure why they
would not have an answer yet on when we Can expect discovery responses and whether or not they will
sign the stipulation. If they do not want to sign the stipulation | can file a motion for leave and have
been instructed by my client to do so. I’d like to avoid involving the Court in these matters, so if you can
please provide me an update I’d appreciate it.
Thank you,
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:;dck@kckblaw.com]
Sent: Monday, December 01, 2014 9:17 PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Nothing yet Chelsea. |’ll send another email and follow up with a call tomorrow if | haven't
heard from them.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email:
Visit us on the Web: www. kckblaw.com
3This is a privileged and confidential communication. If you are not the intended recipient,
you must: (1) Notify the sender of the error; (2) Destroy this communication entirely,
including deletion of all associated attachment files from all individual and network
storage devices; and (3) Refrain from copying or disseminating this communication by any
means.
From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com
Sent: Monday, December 01, 2014 6:48 PM
To: ‘David C. Knowlton’
Ce: Bekeny, Karl
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
Any response from California counsel?
Thanks,
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Wednesday, November 26, 2014 12:24 PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
You’re welcome Chelsea. I’ve forwarded the documents to counsel in California for
review. | have no idea if they are in today or not. | will keep you posted.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kekblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you are not the intended
recipient, you must: (1) Notify the sender of the error; (2) Destroy this
communication entirely, including deletion of all associated attachment files from
4all individual and network storage devices; and (3) Refrain from copying or
disseminating this communication by any means,
From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com:
From: Mikula, Chelsea R. [mailto:Chelsea. Mikula@tuckerellis.com]
Sent: Wednesday, November 26, 2014 12:04 PM
To: ‘David C. Knowlton’
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Thanks, Dave. Appreciate it.
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Wednesday, November 26, 2014 11:58 AM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Hi Chelsea,
I’ve received the documents. I’Il be in touch after reviewing them.
Thanks,
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you are not the
intended recipient, you must: (1) Notify the sender of the error; (2) Destroy
this communication entirely, including deletion of all associated
attachment files from all individual and network storage devices; and (3)
Refrain from copying or disseminating this communication by any means.
Sent: Wednesday, November 26, 2014 11:38 AM
5To: ‘dck@kckblaw.com’
Subject: FW: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
Am trying to see if your email is working today, | know there were issues
yesterday. | am also going to try faxing the below. Please let me know if you
receive.
Thank you,
Chelsea
Chelsea Mikula
216-696-2476
From: Bekeny, Karl
Sent: Tuesday, November 25, 2014 9:43 PM
To: David C. Knowlton (dck@kckblaw.com)
Cc: Mikula, Chelsea R. (Chelsea.Mikula@tuckerellis.com)
Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
As we discussed this afternoon, attached is the Amended Complaint and the
proposed Stipulation allowing Smucker to file the Amended Complaint. Please
confirm that you approve adding your electronic signature to the Stipulation on
Elliott’s behalf. Once you provide that confirmation, we will file the same with
the Court.
Please let me know if you have any questions.
Regards, Karl
Karl A. Bekeny | Attorney | Tucker Ellis LLP
950 Main Avenue, Suite 1100 | Cleveland, OH 44113-7213
Direct: 216-696-2699 | Fax: 216-592-5009
karl.bekeny@tuckerellis.com Online biography - Karl Bekeny
tuckerellis.com
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te free ~=©WWw.avast.comMikula, Chelsea R.
From: David C. Knowlton
Sent: Thursday, December 18, 2014 5:41 PM
To: Mikula, Chelsea R.
Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Hi Chelsea,
l appreciate your client's patience, as well as yours in this matter. Unfortunately, I'm having difficulty confirming a firm
date from California counsel. | wish | had better news.
I'l keep you posted. Thanks again for your patience.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the
sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from
all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any
means. :
On Dec 17, 2014, at 12:04 PM, "Mikula, Chelsea R." wrote:
Dave,
My client has been extremely patient with respect to the discovery and has been gracious in granting
extensions. | have been promised updates that are not received or received much after the fact. Can
you please confirm a date certain the discovery will be received by. If we do not have adequate
assurances that we will have discovery in the near future we will need to seek a motion to compel. We
need to get discovery moving with the April trial date.
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Monday, December 15, 2014 12:16 PM
To: Mikula, Chelsea R.
Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
EXHIBIT CHi Chelsea,
California counsel has advised that he is meeting with the president of the company this
afternoon at 2:30 PST and will advise following his meeting.
Thanks,
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you are not the intended recipient, you
must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including
deletion of all associated attachment files from all individual and network storage devices;
and (3) Refrain from copying or disseminating this communication by any means.
On Dec 15, 2014, at 11:07 AM, "Mikula, Chelsea R." wrote:
Dave,
Any update from CA counsel on discovery? They were originally due on October
16, 2014 and my client kindly granted a 30-day extension giving Elliot until
November 17 to respond. I’d appreciate an update so we do not need to
proceed with a motion to compel. Please let me know.
Regards,
Chelsea
Chelsea Mikula
216-696-2476
From: Mikula, Chelsea R.
Sent: Friday, December 12, 2014 12:11 PM
To: ‘David C. Knowlton’
Cc: Bekeny, Karl
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint
Dave,
Any update on the discovery responses?
Chelsea
Chelsea Mikula
216-696-2476From: David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Thursday, December 04, 2014 12:58 PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended
Complaint
You're welcome Chelsea. Again thanks for your patience.
California counsel has indicated discovery responses should be
to me by the end of next week. | will forward them to you
upon my receipt.
Thanks again, and if you have any further questions, please let
me know.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential communication. If you
are not the intended recipient, you must: (1) Notify the
sender of the error; (2) Destroy this communication entirely,
including deletion of all associated attachment files from all
individual and network storage devices; and (3) Refrain from
copying or disseminating this communication by any means.
From: Mikula, Chelsea R.
[mailto: Chelsea. Mikula@tuckerellis.com]
Sent: Thursday, December 04, 2014 10:23 AM
To: ‘David C. Knowlton’
Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended
Complaint
Dave,
Appreciate the response. We are e-filing so | will sign put your
electronic signature in. Appreciate you getting back to
me. Please keep me posted on discovery. Hopefully | can
provide an update to my client by weeks end of when we can
expect discovery.Chelsea
Chelsea Mikula
216-696-2476
David C. Knowlton [mailto:dck@kckblaw.com]
Sent: Thursday, December 04, 2014 10:12 AM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation and
Amended Complaint
Chelsea,
As to the discovery, | am still awaiting confirmation.
Thanks, and my apologies for the delay.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk, LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www. kckblaw.com
This is a privileged and confidential communication.
Ifyou are not the intended recipient, you must: (1)
Notify the sender of the error; (2) Destroy this
communication entirely, including deletion of all
associated attachment files from all individual and
network storage devices; and (3) Refrain from
copying or disseminating this communication by any
means.
Fro ikula, Chelsea R.
[mailto:Chelsea.Mikula@tuckerellis.com
Sent: Thursday, December 04, 2014 9:10 AM
To: ‘David C. Knowlton’
4Cc: Bekeny, Karl
Subject: RE: SMUCKER/ELLIOTT - Stipulation and
Amended Complaint
Dave,
Any update from California counsel yesterday? | know
you have been diligent in trying to get a response but as
lindicated yesterday, my client is losing patience. If
they met on Tuesday I’m not sure why they would not
have an answer yet on when we can expect discovery
responses and whether or not they will sign the
stipulation. If they do not want to sign the stipulation |
can file a motion for leave and have been instructed by
my client to do so. I'd like to avoid involving the Court
in these matters, so if you can please provide me an
update I’d appreciate it.
Thank you,
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton
[mailto:dck@kckblaw.com]
Sent: Monday, December 01, 2014 9:17 PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Nothing yet Chelsea. 1’ll send another email
and follow up with a call tomorrow if | haven’t
heard from them.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk,
LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www.kckblaw.com
This is a privileged and confidential
communication. If you are not the intended
recipient, you must: (1) Notify the sender of
5the error; (2) Destroy this communication
entirely, including deletion of all associated
attachment files from all individual and
network storage devices; and (3) Refrain from
copying or disseminating this
communication by any means.
From: Mikula, Chelsea R.
mailto:Chelsea.Mikula@tuckerellis.com]
Sent: Monday, December 01, 2014 6:48 PM
To: ‘David C. Knowlton’
Cc: Bekeny, Karl
Subject: RE: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Dave,
Any response from California counsel?
Thanks,
Chelsea
Chelsea Mikula
216-696-2476
From: David C. Knowlton
[mailto: law.com]
Sent: Wednesday, November 26, 2014 12:24
PM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
You're welcome Chelsea. |’ve forwarded the
documents to counsel in California for review. |
have no idea if they are in today or not. | will
keep you posted.
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk,
LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.com
Visit us on the Web: www. kckblaw.com
6This is a privileged and confidential
communication. If you are not the intended
recipient, you must: (1) Notify the sender of
the error; (2) Destroy this communication
entirely, including deletion of all associated
attachment files from all individual and
network storage devices; and (3) Refrain from
copying or disseminating this
communication by any means.
From Mikula, Chelsea
mailto:Chelsea. Mikula @tuckerellis.com
Sent: Wednesday, November 26, 2014 12:04
PM
To: ‘David C. Knowlton’
Subject: RE: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Thanks, Dave. Appreciate it.
Chelsea Mikula
216-696-2476
From: David C. Knowlton
mailto:dck@kckblaw.com]
Sent: Wednesday, November 26, 2014 11:58
AM
To: Mikula, Chelsea R.
Subject: RE: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Hi Chelsea,
I’ve received the documents. |’ll be in touch
after reviewing them.
Thanks,
Dave
David C. Knowlton
Kennedy, Cicconetti, Knowlton & Buytendyk,
LPA
558 North Market Street
Wooster, OH 44691
Ph: 330-262-7555
Fax: 330-264-5739
Email: dck@kckblaw.
7Visit us on the Web: www.kckblaw.com
This is a privileged and confidential
communication. If you are not the intended
recipient, you must: (1) Notify the sender of
the error; (2) Destroy this communication
entirely, including deletion of all associated
attachment files from all individual and
network storage devices; and (3) Refrain from
copying or disseminating this
communication by any means.
From: Mikula, Chelsea R.
0: ui lis.com
Sent: Wednesday, November 26, 2014 11:38
AM
To: 'dck@kckblaw.com'
Subject: FW: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Dave,
Am trying to see if your email is working today, |
know there were issues yesterday. | am also
going to try faxing the below. Please let me
know if you receive.
Thank you,
Chelsea
Chelsea Mikula
216-696-2476
From: Bekeny, Karl
Sent: Tuesday, November 25, 2014 9:43 PM
To: David C. Knowlton (dck@kckblaw.com)
Cc: Mikula, Chelsea R.
(Chelsea. Mikula@tuckerellis.com)
Subject: Re: SMUCKER/ELLIOTT - Stipulation
and Amended Complaint
Dave,
As we discussed this afternoon, attached is the
Amended Complaint and the proposed
Stipulation allowing Smucker to file the
Amended Complaint. Please confirm that you
approve adding your electronic signature to the
Stipulation on Elliott’s behalf. Once you provide
that confirmation, we will file the same with the
Court.Please let me know if you have any questions.
Regards, Karl
Karl A. Bekeny | Attorney | Tucker Ellis LLP
950 Main Avenue, Suite 1100 | Cleveland, OH
44113-7213
Direct: 216-696-2699 | Fax: 216-592-5009
karl. bekeny@tuckerellis.com Online
biography - Karl Bekeny
tuckerellis.com
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LLP and may contain information that is
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e-filed on 12/22/2014 at 04:36 PM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO J.M. SMUCKER LLC, } CASE NO. 2014 CVC H000212 Plaintiff, } JUDGE SPITLER v. ) ) PLAINTIFF J.M. SMUCKER LLC’S ELLIOTT MANUFACTURING COMPANY, } MOTION TO COMPEL DISCOVERY Defendant. ) Plaintiff JM. Smucker LLC (“Smucker”), by and through its counsel and pursuant to Rule 37(A) of the Ohio Rules of Civil Procedure, respectfully requests that this Court issue an Order compelling a response from Defendant Elliott Manufacturing Company (“Elliott”) to Smucker’s discovery requests. Smucker has made several attempts to resolve this discovery dispute without the involvement of the Court, but, to date, Elliott has failed to fulfill its promise to respond to Smucker’s discovery requests. Smucker has no further recourse but to move to compel a discovery response. The grounds for this Motion are more fully set forth in the Memorandum attached hereto and incorporated herein.Respectfully submitted, /s/ Chelsea R. Mikula Kevin M. Young (0029715) Karl A. Bekeny (0075332) Chelsea Mikula (0086453) Tucker Ellis LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Tel: 216.592.5000 Fax: 216.592.5009 E-mail: _kevin.young@tuckerellis.com karl.bekeny@tuckerellis.com chelsea.mikula@tuckerellis.com Attorneys for Plaintiff J.M. Smucker LLCIN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO J.M, SMUCKER LLC, CASE NO. 2014 CVC H000212 Plaintiff, } JUDGE SPITLER v. ) ) ELLIOTT MANUFACTURING COMPANY, ) FRAtSTIEE LM. SMUCKER ELC S os 2 MOTION TO COMPEL DISCOVERY Defendant. ) OOS SO aaewerwsTweeomoses ) L INTRODUCTION Defendant Elliott Manufacturing Company (“Elliott”) has yet to respond to Plaintiff J.M. Smucker LLC’s (“Smucker”) First Set of Interrogatories and First Request for Production of Documents, which were served on Elliott by regular U.S. mail and email on September 19, 2014. (See Mikula Affidavit, attached as Exhibit 1.)! Since serving these requests, Smucker’s counsel has been in regular contact with Elliott’s counsel. Elliott’s counsel did agree to respond to Smucker’s discovery requests, however, Elliott has yet to fulfill its promise. Smucker has granted reasonable extensions but cannot wait any longer with the upcoming dispositive motion and trial deadlines that Smucker intends to comply with. IL. SUMMARY OF ARGUMENT Smucker’s Motion to Compel should be granted for the following reasons: e Elliott has failed to respond to Smucker’s First Set of Interrogatories and First Request for Production of Documents that were served in September of this year; and 1 Elliott did respond to the Requests for Admission included in the discovery requests on October 16, 2014.«© Smucker has satisfied the requirements of Rule 37(E) of the Ohio Rules of Civil Procedure by first making a "reasonable effort" to resolve the discovery dispute with opposing counsel before seeking assistance from the Court. TI. LAW AND ARGUMENT A. Elliott Has Not Responded To Smucker’s First Set_of Interrogatories and First Request for Production of Documents. On September 19, 2014, Smucker served Elliott with its First Set of Interrogatories and First Request for Production of Documents. (See Exhibit 1.) Pursuant to Rules 33 and 34 of the Ohio Rules of Civil Procedure, Elliott had until October 17, 2014, to respond to Smucker’s discovery requests. At the request of Elliott, Smucker granted a 30 day extension, making the responses due November 17, 2014. (Id.) It has been over a month since the discovery responses were due and Elliott has still not served responses. (Id.) With a discovery cut-off and dispositive motion deadline of February 26, 2014, Smucker needs Blliott’s written responses and any responsive documents without further delay. B. Smucker Satisfied The Requirements Of Ohio Civil Rule 37(E) By Attempting To Resolve This Discovery Dispute With Opposing Counsel Before Involving The Court. Rule 37(E) of the Ohio Rules of Civil Procedure requires that a party moving to compel discovery first make a "reasonable effort" to resolve the discovery dispute with opposing counsel. Smucker made several attempts to resolve this discovery dispute before filing this Motion, including, but not limited to: (1) on December 4, 2014, Smucker’s counsel sent Elliott’s counsel an email requesting an update on the status of discovery which Smucker’s counsel indicated would be received by December 12, 2014; (2) on December 15, 2014, Smucker’s counsel again asked when the discovery responses would be received to which Elliott’s counsel responded that he did not have a firm date of when the discovery would be produced. (See Exhibit 1.)Smucker has granted reasonable extensions and has tried to resolve this issue with Elliott’s counsel. A date uncertain to produce discovery, however, will not work given the upcoming discovery cut-off and dispositive motion deadline. Smucker has no choice but to seek the assistance of the Court to ensure the discovery is produced so that the other deadlines in this case are met. IV. CONCLUSION Elliott has failed to respond to Smucker’s First Set of Interrogatories and First Request for Production of Documents. For this reason, Smucker requests that this Court issue an Order compelling a response to its First Set of Interrogatories and First Request for Production of Documents. Respectfully submitted, 4s/ Chelsea R. Mikula Kevin M. Young (0029715) Karl A. Bekeny (0075332) Chelsea Mikula (0086453) Tucker Ellis LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Tel: 216.592.5000 Fax: — 216.592.5009 E-mail: kevin.young@tuckerellis.com. karl.bekeny@tuckerellis.com chelsea.mikula@tuckerellis.com Attorneys for Plaintiff J.M. Smucker LLCPROOF OF SERVICE This certifies that a true and accurate copy of the foregoing Plaintiff’s Motion to Compel was served on December 22, 2014, pursuant to Civ.R. 5(B)(2)(f) by e-mail to: David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 E-Mail: dck@kckblaw.com Attorney for Defendant Elliott Manufacturing Company /s/ Chelsea R. Mikula Kevin M. Young (0029715) Karl A. Bekeny (0075332) Chelsea Mikula (0086453) Tucker Ellis LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113-7213 Tel: — 216.592.5000 Fax: 216.592.5009 E-mail: _kevin.young@tuckerellis.com karl.bekeny@tuckerellis.com chelsea.mikula@tuckerellis.com Attorneys for Plaintiff I.M. Smucker LLCState of Ohio ) ss: County of Cuyahoga ) AFFIDAVIT OF CHELSEA R. MIKULA Chelsea R. Mikula, being first duly sworn according to law states as follows: 1. I am an attorey with the law firm of Tucker Ellis LLP and am licensed to practice in all courts in the State of Ohio. 2. My Affidavit is given on personal knowledge and I am competent to give this Affidavit. 3. Tam one of the attorneys of record for JM. Smucker LLC in connection with the case of J.M. Smucker LLC vy. Elliott Manufacturing Company, Wayne County Common Pleas Court Case No. 2012 CVC H000212. 4. On September 19, 2014, my firm served Defendant Elliott Manufacturing with Elliott’s First Set of Interrogatories and First Request for Production of Documents via regular U.S. mail and email making Plaintiff’s responses due on or before October 17, 2014. (Exhibit A) 5. On October 16, 2014, counsel for Elliott, David Knowlton, requested a 30-day extension to respond to the discovery. 6. Smucker granted the extension making Elliott’s discovery responses due on or before November 17, 2014. 7. No responses had been received, so on December 4, 2014, I contacted Mr. Knowlton via email to check on the status. (Exhibit B.) 8. We exchanged several emails and Mr. Knowlton confirmed the discovery responses would be received by December 12, 2014. (Id.) 2191408.1 EXHIBIT 19. When no responses were received, I again followed up with Mr. Knowlton via email on December 15, 2014. (Exhibit C.) 10. | Mr. Knowlton responded that he did not have a date certain the discovery would be received by. (Id.) 11. Ihave received no further communications from Mr. Knowlton. Affiant further sayeth naught. lube: Chelsea R. Mikula 12. SWORN TO AND SUBSCRIBED in my presence this 22 day of December, 2014. en t Hirt NOTARY PUBLIC 2191408.1IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO J.M. SMUCKER LLC Plaintiff, CASE NO. 2014 CVC-H 000212 JUDGE COREY E. SPITLER V. PLAINTIFF J.M. SMUCKER LLC’S FIRST SET OF INTERROGATORIES, REQUESTS FOR ADMISSION, AND REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON DEFENDANTELLIOTT MANUFACTURING COMPANY ELLIOTT MANUFACTURING COMPANY Defendant. eee eee we Pursuant to Rules 33 and 36 of the Ohio Rules of Civil Procedure, Plaintiff J.M. Smucker, LLC (“Plaintiff’) requests that Defendant Elliott . Manufacturing Company (“Defendant”) answer the following interrogatories and requests for admission in writing and under oath and serve such answers on Plaintiff within twenty-eight (28) days after service. Additionally, pursuant to Rule 34 of the Ohio Rules of Civil Procedure, Plaintiff requests that the production of documents and any written response be made within twenty-eight (28) days of the service of these requests by mailing a copy of all requested documents and your written response to Chelsea R. Mikula, Tucker Ellis LLP, 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113. SCOPE OF INFORMATION SOUGHT In answering these discovery requests, Defendant must furnish all information and documents available to it, including information and documents in the possession of its employees, agents, attorneys, investigators and all other persons acting on its behalf. If Defendant cannot answer the discovery requests in full after due diligence to secure the information, so state and answer to the extent possible, specifying Defendant’s inability to EXHIBIT Aanswer the remainder, and providing whatever information, documents, and/or knowledge it has concerning the unanswered portions. CLAIMS OF PRIVILEGE If Defendant claims some privilege as a ground for non-production of any document or for refusal to answer an interrogatory or request for admission, it shall set forth with respect to the document or communication its date, author, addressee or recipient, if any, title, type of tangible thing (letter, memorandum, telegraph, chart, report, tape recording, etc.), if appropriate, its subject matter (without revealing the information as to which privilege is claimed) with sufficient specificity to permit the Court to make a full determination whether the claim of privilege is valid, and each and every factor upon which Defendant claims privilege. CONTINUING NATURE The discovery requests that follow are to be considered as continuing pursuant to Rule 26(E) of the Ohio Rules of Civil Procedure, and Defendant is requested to provide, by way of supplementary answers hereto, such additional information and documents as Defendant, or any other person acting on its behalf, may hereafter obtain, which will augment or otherwise supplement its answers and responses now given to the interrogatories or requests for production of documents below. DEFINITIONS As used herein, the following terms shall have the meaning indicated below: 1 “You,” “your,” “Elliott,” and “Defendant” shall refer to Elliott Manufacturing Company its agents, employees, representatives, attorneys and/or all other persons acting or purporting to act with it or on its behalf. 2. “Smucker” or “Plaintiff” shall refer to J.M. Smucker LLC its agents, employees, representatives, attorneys, and/or all other persons acting or purporting to act with it or on itsbehalf. 3. “Sales Agreement” refers to the June 15, 2012 agreement entered into between JM. Smucker LLC and Elliott Manufacturing Company and attached to these Discovery Requests as Exhibit 1. 4. “Equipment System” shall refer to the Equipment System Elliott agreed. to provide to Smucker pursuant to the June 15, 2012 Sales Agreement, 5. “Lawsuit” refers to Case No. 2014 CVC-H 000212 filed in the Court of Common Pleas for Wayne County, entitled ..M Smucker LLC y, Elliott Manufacturing Company. 6. “Person” means natural persons, corporations, partnerships, sole proprietorships, unions, associations, federations, government agencies, or any. other type of entity. 7. “Document” means any printed, typewritten, handwritten, or otherwise recorded matter of whatever character, such as electronically stored information, including drafts of same and, includes, but is not limited to, letters, booklets, certificates of title, forms, memoranda, telegrams, notes, catalogs, brochures, diaries, reports, calendars, interoffice communications, electronic mails, attachments to electronic mails, computer records, statements, spreadsheets, announcements, photographs, audio or video tape recordings, motion pictures and any carbon, photographic, or electronic copies of any such material if Defendant does not have custody or control of the original. 8. The word “correspondence” shall include any and all forms of communication including, but not limited to, conversations, conferences, video conferences, meetings and other face-to-face communications, telephone calls and other forms of verbal or oral communication, correspondence, telegrams, faxes, electronic mail, letters and all other forms of written communication.9. | When used herein, plural terms shall include the singular and singular terms shall include the plural. 10. When used herein, conjunctive terms (e.g., “and”) shall include the disjunctive (e.g., “or”) and disjunctive terms shall include the conjunctive. 11. The term “relating to” or “relate to” shall mean consisting of, referring to, reflecting, pertaining to, or in any way logically or factually connected with the matter discussed. A document “relating to” or “related to” a given subject is any document identifying, showing, referring to, dealing with, evidencing, commenting upon, having as a subject, describing, summarizing, analyzing, explaining, detailing, outlining, defining, interpreting or pertaining to that subject, including, without limitation, documents referring to the presentation of other documents, REQUESTS FOR MISSION 1. Admit that attached hereto as Exhibit 1 is a true and accurate copy of the Sales Agreement entered into between Smucker and Elliott on June 15, 2012 (“Sales Agreement”). RESPONSE: 2. Admit that pursuant to the Sales Agreement Elliott agreed to provide a “complete and fully functional Equipment System” to Smucker. RESPONSE: 3. Admit that Elliott failed to provide a “complete and fully functional Equipment System” to Smucker as required by the Sales Agreement. RESPONSE:4. Admit that Smucker paid Elliott approximately $309,420 for the Equipment System. RESPONSE: 5. Admit that Elliott never delivered the Equipment System to Smucker and continues to have possession of the Equipment System. RESPONSE: 6. Admit that Elliott has retained the approximately $309,420 paid by Smucker. RESPONSE: 7. Admit that attached hereto as Exhibit 2 is a true and accurate copy of the August 20, 2013 letter from Elliott’s President, Terry Aluisi, to Mr. Andrew at Smucker. RESPONSE: 8. Admit that Elliott’s effort to manufacture “a complete and fully functional Equipment System” was “unsuccessful.” RESPONSE: 9. Admit that Elliott agreed to fully refund Smucker all monies received for the purchase of the Equipment System. RESPONSE:10. Admit that Elliott has failed to refund Smucker any amount paid for the Equipment System. RESPONSE: 11. Admit that Smucker terminated the Agreement on August 27, 2013. RESPONSE:INTERROGATORIES 1. Identify each person who answered or assisted in answering these discovery requests. RESPONSE: 2. Identify all persons having information concerning or relating in any way to the subject matter of this Lawsuit and, for each person so identified, state to the best of your ability the specific subject of the information, and identify and produce all documents relating to that person’s knowledge or information. RESPONSE: 3. State the name, address and telephone number of each potential expert witness, the substance of the facts and opinion(s) to which. the expert is expected to testify, provide a summary of the grounds for each opinion, and identify and produce all documents on which each expert witness relies for the basis of his/her opinion(s), including, but not limited to, each expert’s report (and any draft report(s)). RESPONSE: 4, State the name, address, telephone number, and substance of the testimony of each of your potential witnesses (other than expert witnesses). RESPONSE: 5. Identify all exhibits that you will introduce at any deposition, hearing, or at the trial of this matter. RESPONSE:6. Identify any third party who you assert is responsible, in whole or in part, for the Equipment System failing to comply with specifications and or production as alleged in your Tenth Affirmative Defense. RESPONSE: 7. Identify each and every reason you deny Smucker’s allegation in Paragraph 12 of the Complaint that the Equipment System never performed according to specification. RESPONSE: 8. Identify each and every reason you deny Smucker’s allegations in Paragraph 15 of the Complaint that the Equipment System was never delivered to Smuckers and that Elliott has failed and/or refused to pay Smuckers for the resulting damages incurred. RESPONSE: 9. Identify each and every reason you deny Smucker’s allegation in Paragraph 16 of the Complaint that Smucker terminated the Sales Agreement.on August 27, 2013. RESPONSE: 10. If you deny any of the Requests for Admission, in whole-or in part, please state ’ the reason for your denial. RESPONSE:REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Produce all documents you intend to rely on or introduce at any deposition, hearing, or trial of this matter. RESPONSE: 2. Produce all documents and communications between Elliott and Smucker related to the Equipment System. RESPONSE: 3. Produce all design drawings, reports, memorandums, or other documents regarding the Equipment System. RESPONSE: 4. Produce all internal communications regarding the Equipment System. RESPONSE: 5. Produce all documents provided to any expert(s). RESPONSE: 6. Produce any documents that support your Answer to Plaintiffs Complaint. RESPONSE: 7. Produce any documents evidencing your attempts to sell the Equipment System. RESPONSE:Respectfully submitted, kevin. young@tuckerellis.com Karl Bekeny (0075332) karl.bekeny@tuckerellis.com Chelsea R. Mikula (0086453) chelsea.mikula@tuckerellis.com Tucker Ellis LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 Telephone: 216.592.5000 Facsimile: 216.592.5009 Attorneys for Plaintiff J.M. Smucker LLC 10PROOF OF SERVICE Plaintiff JM. Smucker LLC’s First Set of Discovery Requests Propounded Upon Defendant Elliott Manufacturing Company have been served upon David C. Knowlton, Attorney for Defendant Elliott Manufacturing Company, Kennedy, Cicconetti, Knowlton & Buytedyk, LPA, 558 North Market Strect, Wooster, Ohio 44691 this 19th day of September, 2014 by regular U.S. mail, postage prepaid, and electronic mail to dck@kckblaw.com. Kevin Young ( 715) kevin.young@tuckerellis.com Karl Bekeny (0075332) karl.bekeny@tuckerellis.com Chelsea R. Mikula (0086453) chelsea.mikula@tuckerellis.com Tucker Ellis LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 Telephone: 216.592.5000 Facsimile: 216.592.5009 Attorneys for Plaintiff .M. Smucker LLC 11Mikula, Chelsea R. From: Sent: To: Subject: Dave, Mikula, Chelsea R. Thursday, December 04, 2014 5:07 PM ‘David C. Knowlton’ RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Thanks for the update. This email will confirm that we expect responses to the requests for production as well as the interrogatories and any responsive documents by no later than Friday, December 12. Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Thursday, December 04, 2014 12:58 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint You’re welcome Chelsea. Again thanks for your patience. California counsel has indicated discovery responses should be to me by the end of next week. | will forward them to you upon my receipt. Thanks again, and if you have any further questions, please let me know. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. 1 EXHIBIT BFrom: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com Sent: Thursday, December 04, 2014 10:23 AM To: ‘David C. Knowlton’ Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Appreciate the response. We are e-filing so | will sign put your electronic signature in. Appreciate you getting back to me. Please keep me posted on discovery. Hopefully | can provide an update to my client by weeks end of when we can expect discovery. Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Thursday, December 04, 2014 10:12 AM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Chelsea, As to the discovery, | am still awaiting confirmation. Thanks, and my apologies for the delay. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.comThis is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com: Sent: Thursday, December 04, 2014 9:10 AM To: ‘David C. Knowlton’ Cc: Bekeny, Karl Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Any update from California counsel yesterday? | know you have been diligent in trying to get a response but as | indicated yesterday, my client is losing patience. If they met on Tuesday I’m not sure why they would not have an answer yet on when we Can expect discovery responses and whether or not they will sign the stipulation. If they do not want to sign the stipulation | can file a motion for leave and have been instructed by my client to do so. I’d like to avoid involving the Court in these matters, so if you can please provide me an update I’d appreciate it. Thank you, Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:;dck@kckblaw.com] Sent: Monday, December 01, 2014 9:17 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Nothing yet Chelsea. |’ll send another email and follow up with a call tomorrow if | haven't heard from them. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: Visit us on the Web: www. kckblaw.com 3This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com Sent: Monday, December 01, 2014 6:48 PM To: ‘David C. Knowlton’ Ce: Bekeny, Karl Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Any response from California counsel? Thanks, Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Wednesday, November 26, 2014 12:24 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint You’re welcome Chelsea. I’ve forwarded the documents to counsel in California for review. | have no idea if they are in today or not. | will keep you posted. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kekblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from 4all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means, From: Mikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com: From: Mikula, Chelsea R. [mailto:Chelsea. Mikula@tuckerellis.com] Sent: Wednesday, November 26, 2014 12:04 PM To: ‘David C. Knowlton’ Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Thanks, Dave. Appreciate it. Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Wednesday, November 26, 2014 11:58 AM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Hi Chelsea, I’ve received the documents. I’Il be in touch after reviewing them. Thanks, Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. Sent: Wednesday, November 26, 2014 11:38 AM 5To: ‘dck@kckblaw.com’ Subject: FW: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Am trying to see if your email is working today, | know there were issues yesterday. | am also going to try faxing the below. Please let me know if you receive. Thank you, Chelsea Chelsea Mikula 216-696-2476 From: Bekeny, Karl Sent: Tuesday, November 25, 2014 9:43 PM To: David C. Knowlton (dck@kckblaw.com) Cc: Mikula, Chelsea R. (Chelsea.Mikula@tuckerellis.com) Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, As we discussed this afternoon, attached is the Amended Complaint and the proposed Stipulation allowing Smucker to file the Amended Complaint. Please confirm that you approve adding your electronic signature to the Stipulation on Elliott’s behalf. Once you provide that confirmation, we will file the same with the Court. Please let me know if you have any questions. Regards, Karl Karl A. Bekeny | Attorney | Tucker Ellis LLP 950 Main Avenue, Suite 1100 | Cleveland, OH 44113-7213 Direct: 216-696-2699 | Fax: 216-592-5009 karl.bekeny@tuckerellis.com Online biography - Karl Bekeny tuckerellis.com This e-mail is sent by the law firm of Tucker Ellis LLP and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and notify us immediately by return email. wt . ae ‘ a Eee This email is free from viruses and malware because avast! Antivirus p2 . ae , ad This email is free from viruses and malware because avast! Ant Hone This email is free from viruses and malware because avast! Antivirus protection is act A ae | Antivi avastf This email is free from viruses and malware because avast! Antivirus be free — protection is active. ovost This email has been checked for viruses by Avast antivirus software. te free ~=©WWw.avast.comMikula, Chelsea R. From: David C. Knowlton Sent: Thursday, December 18, 2014 5:41 PM To: Mikula, Chelsea R. Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Hi Chelsea, l appreciate your client's patience, as well as yours in this matter. Unfortunately, I'm having difficulty confirming a firm date from California counsel. | wish | had better news. I'l keep you posted. Thanks again for your patience. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. : On Dec 17, 2014, at 12:04 PM, "Mikula, Chelsea R." wrote: Dave, My client has been extremely patient with respect to the discovery and has been gracious in granting extensions. | have been promised updates that are not received or received much after the fact. Can you please confirm a date certain the discovery will be received by. If we do not have adequate assurances that we will have discovery in the near future we will need to seek a motion to compel. We need to get discovery moving with the April trial date. Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Monday, December 15, 2014 12:16 PM To: Mikula, Chelsea R. Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint EXHIBIT CHi Chelsea, California counsel has advised that he is meeting with the president of the company this afternoon at 2:30 PST and will advise following his meeting. Thanks, Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. On Dec 15, 2014, at 11:07 AM, "Mikula, Chelsea R." wrote: Dave, Any update from CA counsel on discovery? They were originally due on October 16, 2014 and my client kindly granted a 30-day extension giving Elliot until November 17 to respond. I’d appreciate an update so we do not need to proceed with a motion to compel. Please let me know. Regards, Chelsea Chelsea Mikula 216-696-2476 From: Mikula, Chelsea R. Sent: Friday, December 12, 2014 12:11 PM To: ‘David C. Knowlton’ Cc: Bekeny, Karl Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Any update on the discovery responses? Chelsea Chelsea Mikula 216-696-2476From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Thursday, December 04, 2014 12:58 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint You're welcome Chelsea. Again thanks for your patience. California counsel has indicated discovery responses should be to me by the end of next week. | will forward them to you upon my receipt. Thanks again, and if you have any further questions, please let me know. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From: Mikula, Chelsea R. [mailto: Chelsea. Mikula@tuckerellis.com] Sent: Thursday, December 04, 2014 10:23 AM To: ‘David C. Knowlton’ Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Appreciate the response. We are e-filing so | will sign put your electronic signature in. Appreciate you getting back to me. Please keep me posted on discovery. Hopefully | can provide an update to my client by weeks end of when we can expect discovery.Chelsea Chelsea Mikula 216-696-2476 David C. Knowlton [mailto:dck@kckblaw.com] Sent: Thursday, December 04, 2014 10:12 AM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Chelsea, As to the discovery, | am still awaiting confirmation. Thanks, and my apologies for the delay. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www. kckblaw.com This is a privileged and confidential communication. Ifyou are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. Fro ikula, Chelsea R. [mailto:Chelsea.Mikula@tuckerellis.com Sent: Thursday, December 04, 2014 9:10 AM To: ‘David C. Knowlton’ 4Cc: Bekeny, Karl Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Any update from California counsel yesterday? | know you have been diligent in trying to get a response but as lindicated yesterday, my client is losing patience. If they met on Tuesday I’m not sure why they would not have an answer yet on when we can expect discovery responses and whether or not they will sign the stipulation. If they do not want to sign the stipulation | can file a motion for leave and have been instructed by my client to do so. I'd like to avoid involving the Court in these matters, so if you can please provide me an update I’d appreciate it. Thank you, Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto:dck@kckblaw.com] Sent: Monday, December 01, 2014 9:17 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Nothing yet Chelsea. 1’ll send another email and follow up with a call tomorrow if | haven’t heard from them. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of 5the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From: Mikula, Chelsea R. mailto:Chelsea.Mikula@tuckerellis.com] Sent: Monday, December 01, 2014 6:48 PM To: ‘David C. Knowlton’ Cc: Bekeny, Karl Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Any response from California counsel? Thanks, Chelsea Chelsea Mikula 216-696-2476 From: David C. Knowlton [mailto: law.com] Sent: Wednesday, November 26, 2014 12:24 PM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint You're welcome Chelsea. |’ve forwarded the documents to counsel in California for review. | have no idea if they are in today or not. | will keep you posted. Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw.com Visit us on the Web: www. kckblaw.com 6This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From Mikula, Chelsea mailto:Chelsea. Mikula @tuckerellis.com Sent: Wednesday, November 26, 2014 12:04 PM To: ‘David C. Knowlton’ Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Thanks, Dave. Appreciate it. Chelsea Mikula 216-696-2476 From: David C. Knowlton mailto:dck@kckblaw.com] Sent: Wednesday, November 26, 2014 11:58 AM To: Mikula, Chelsea R. Subject: RE: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Hi Chelsea, I’ve received the documents. |’ll be in touch after reviewing them. Thanks, Dave David C. Knowlton Kennedy, Cicconetti, Knowlton & Buytendyk, LPA 558 North Market Street Wooster, OH 44691 Ph: 330-262-7555 Fax: 330-264-5739 Email: dck@kckblaw. 7Visit us on the Web: www.kckblaw.com This is a privileged and confidential communication. If you are not the intended recipient, you must: (1) Notify the sender of the error; (2) Destroy this communication entirely, including deletion of all associated attachment files from all individual and network storage devices; and (3) Refrain from copying or disseminating this communication by any means. From: Mikula, Chelsea R. 0: ui lis.com Sent: Wednesday, November 26, 2014 11:38 AM To: 'dck@kckblaw.com' Subject: FW: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, Am trying to see if your email is working today, | know there were issues yesterday. | am also going to try faxing the below. Please let me know if you receive. Thank you, Chelsea Chelsea Mikula 216-696-2476 From: Bekeny, Karl Sent: Tuesday, November 25, 2014 9:43 PM To: David C. Knowlton (dck@kckblaw.com) Cc: Mikula, Chelsea R. (Chelsea. Mikula@tuckerellis.com) Subject: Re: SMUCKER/ELLIOTT - Stipulation and Amended Complaint Dave, As we discussed this afternoon, attached is the Amended Complaint and the proposed Stipulation allowing Smucker to file the Amended Complaint. Please confirm that you approve adding your electronic signature to the Stipulation on Elliott’s behalf. Once you provide that confirmation, we will file the same with the Court.Please let me know if you have any questions. Regards, Karl Karl A. Bekeny | Attorney | Tucker Ellis LLP 950 Main Avenue, Suite 1100 | Cleveland, OH 44113-7213 Direct: 216-696-2699 | Fax: 216-592-5009 karl. bekeny@tuckerellis.com Online biography - Karl Bekeny tuckerellis.com This e-mail is sent by the law firm of Tucker Ellis LLP and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and notify us immediately by return email. This email is free from viruse protection is active. This email is free from viruses and 1r protection is active. This email is free from viruses and malware protection is active. This email is free from viruses and malware becaus protection is active. This email has been checked for viruses by Avast antivirus software. www.avast.com