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0c172 14 ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
MARINER HEALTH CARE, INC. etal., ) © CASE NO: 12CV014618
)
Plaintiffs, ) JUDGE PATRICK E. SHEERAN
)
v. )
) DEFENDANTS’ MOTION FOR
RICHARD L. BRUNNER, et al., ) EXTENSION OF TIME TO COMPLETE
) DISCOVERY
)
Defendants.
Defendants Rick L. Brunner, Patrick M. Quinn, Steven M. Brown, The Brunner Firm
Co., L.P.A., and The Brunner Firm Co., L.P.A. dba Brunner Quinn (collectively “Defendants”),
by and through the undersigned counsel, request an extension of time in which to complete fact
discovery. As set forth in Defendants’ Motion to Compel, filed contemporaneously with this
Motion, and as will be discussed in this Motion, Plaintiffs’ stonewalling tactics with respect to
discovery have prevented Defendants from completing their discovery necessary to defend
against Plaintiffs’ claims. Accordingly, Defendants need additional time to complete their
existing discovery with Court supervision to ensure Plaintiffs’ compliance. Defendants suggest
that they be granted an additional forty-five days, until on or before January 1, 2015, to complete
their fact discovery. A memorandum in support of this Motion is attached hereto and
incorporated by reference herein.0c172 pe ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
Respectfully submitted,
s/Alan M. Petrov
ALAN M. PETROV (0020283)
JAMIE A. PRICE (0084178)
Gallagher Sharp
Sixth Floor Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
(216) 241-5310 (phone)
(216) 241-1608 (fax)
apetrov@gallaghersharp.com
jprice@gallaghersharp.com
Counsel for Defendants0C172
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MEMORANDUM IN SUPPORT
Plaintiffs have a history of not properly responding to discovery in this case. Defendants
have issued Three Sets of Interrogatories and Five Sets of Requests for Production of Documents
in this case.' All of the documents, communications and information sought by Defendants are
vital to the defense of their case. Defendants, though their counterclaim counsel, have also
issued discovery requests with respect to their Counterclaim. Plaintiffs’ responses to the various
discovery requests have consistently been inadequate. This despite the fact that Defendants’
produced seven (7) boxes of documents to Plaintiffs in response to discovery requests in the
previously-filed malpractice case and have produced thousands of pages of e-mails and
electronic documents requested by Plaintiffs. Likewise, Plaintiffs have been resistant to
submitting certain of their witnesses for deposition. As a result, Defendants, though their
counterclaim counsel, have filed two previous motions to compel, one relating to Plaintiffs’
deficient responses to written discovery requests and the other relating to Plaintiffs’ refusal to
produce a corporate representative for deposition.” These motions were filed on July 24, 2013
and August 22, 2013, respectively. Defendants also addressed deficiencies with Plaintiffs’
discovery responses with Plaintiffs’ counsel, and filed a motion to compel on June 6, 2014, based
upon one of Plaintiffs’ key witnesses’, Avi Klein, refusal to appear for deposition?
A common theme among Plaintiffs’ responses to Defendants’ discovery requests has
been that Defendants should already have the documents they requested in their file. As
addressed in their Motion to Compel, filed contemporaneously with this Motion, not only is this
response improper under the Civil Rules, but Defendants do not have the information they have
' See Affidavit of Alan Petrov, attached hereto as Exhibit A. The time in which Plaintiffs have to respond to
Defendants’ Third Set of Interrogatories and Fourth and Fifth Sets of Requests for Production has not yet expired,
? True and accurate copies of Defendants’ Motions to Compel are attached hereto as Exhibits B and C, respectively.
Due to size, exhibits submitted with these motions are not being attached.
> A true and accurate copy of Defendants’ Motion to Compel is attached hereto as Exhibit D. Due to size, exhibits
submitted with the motion are not being attached.0C172
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requested in their possession. As a result of Plaintiffs’ initial lack of compliance with the
discovery rules, Defendants issued several sets of targeted discovery requests in the hopes that
Plaintiffs will finally produce the requested information. This has been to no avail. As set forth
in their Motion to Compel, Plaintiffs’ have failed to produce a single document in response to
Defendants’ Second and Third Sets of Requests for Production of Documents and have failed to
sufficiently and completely answer the interrogatories in Defendants’ Second Set of
Interrogatories.
Plaintiffs’ stonewalling tactics exemplified though the depositions of two of their
corporate representatives: Avi Klein and Rebecca Rivera. Avi Klein is one of the key witnesses
in this case. He is the owner and manager of nine of the Plaintiffs: FMSC Leasehold, LLC,
FMSC Collierville Operating Company, LLC; FMSC Memphis Operating Company, LLC;
DMSC Leasehold, LLC; Dynamic Yazoo City Operating Company, LLC; Dynamic Natchez
Operating Company, LLC; Dynamic Indianola Operating Company, LLC; Dynamic Columbia
Operating Company, LLC; and Dynamic Cleveland Operating Company, LLC. It is these nine
Plaintiffs that claimed that funds were due to them in the underlying litigation. Mr. Klein’s
importance as a witness is demonstrated by Plaintiffs’ designation of him as the corporate
designee of the nine aforementioned Plaintiffs and listing him as a person with knowledge as to
the allegations in this case, as well as their submission of his affidavit in support of Plaintiffs’
brief in opposition to Defendants’ summary judgment motion with respect to the counterclaim,
filed with the Court on August 14, 2013.4 As is made clear though documents and information
* See Plaintiffs’ responses to Defendants’ First Set of Interrogatories at Interrogatory No. 8, a true and accurate copy
of which is attached hereto as Exhibit E, Plaintiffs’ Second Supplemental Disclosure of Witnesses, a true and
accurate copy of which is attached hereto as Exhibit F, Plaintiffs’ supplemental responses to Defendants’ First Set of
Interrogatories at Interrogatory No. 4, a true and accurate copy of which is attached hereto as Exhibit G, August 15,
2013 Letter from Michael Bernstein to Jennifer Brunner, a true and accurate copy of which is attached hereto as
Exhibit H. A true and accurate copy of Mr. Klein’s affidavit is attached hereto as Exhibit I.
20c172 ne tanktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
already in Defendants’ possession, Mr. Klein was involved in both the defense of the underlying
litigation as well as the counterclaim for overdue funds. Specifically, Mr. Klein was involved in
and was Plaintiffs’ primary decision maker regarding discovery issues, settlement negotiations
and trial strategy in the underlying Covenant Dove litigation. He even attended several days of
trial.
Mr. Klein was also the subject of Defendants’ earlier motion to compel, filed on June 6,
2014, based upon his refusal to appear for his deposition.> Mr. Klein’s deposition was initially
requested by Defendants through their Counterclaim counsel on July 12, 2013, and by the
undersigned counsel on March 21, 2014. Mr. Klein finally appeared for his deposition on
November 7, 2014, which was almost five (5) months after he was originally supposed to appear.
However, instead of answering the questions posed to him with respect to this malpractice case
and the underlying Covenant Dove litigation, he asserted his Fifth Amendment rights and refused
to answer a single question posed by Defendants’ counsel other than his name.° Presumably Mr.
Klein’s assertion of his Fifth Amendment rights is based upon his indictment in connection with
his nursing home in Weber City, Virginia, which is entirely unrelated to this case. Due to Mr.
Klein’s delay tactics and his refusal to answer questions at his deposition, Defendants are now in
the same position as they were early on in the case — without access to critical information from a
key witness that they need in order to adequately defend against Plaintiffs’ claims.
Rebecca Rivera was the regional accounting manager with Millennium Management that
oversaw billings, collections, and guidance on Medicare and Medicaid regulations at the five
nursing facilities at issue in Mississippi who was called to testify on behalf of Defendants at trial
during the underlying Covenant Dove litigation to assist in establishing Defendants’
5 See Ex. D: Defendants’ Motion to Compel.
° Petrov Affidavit at 94.0C172
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counterclaim and defenses to Covenant Dove’s claims.” During her deposition in this case on
November 6, 2014, Ms. Rivera testified as to the existence correspondence and documents
regarding these facilities and their financial information that are responsive to discovery requests
issued by Defendants that Plaintiffs have failed to produce and that Defendants do not otherwise
have.®
In light of Mr. Klein’s refusal to answer questions at his deposition and Plaintiffs’ failure
to provide documents and information responsive to Defendants’ discovery requests, all of which
are vital to Defendants’ defenses in this case, Defendants need additional time in which to
complete their discovery, i.e. obtain responses to their outstanding discovery with the Court’s
assistance and analyze such information, and thereafter prepare a dispositive motion.
Accordingly, Defendants request this extension of time in the interests of justice to allow them to
properly defend against Plaintiffs’ claims. No parties will be prejudiced by the granting of this
Motion.
For the foregoing reasons, Defendants respectfully request and extension of time in
which to complete their fact discovery, and suggest that they be granted an additional forty-five
days, until on or before January 1, 2015, to complete such discovery.
7 See Deposition Transcript of Rebecca Rivera from the underlying Covenant Dove litigation at pp. 10-11. Cited
pages of Ms. Rivera’s underlying deposition transcript are attached hereto as Exhibit J.
® Petrov Affidavit at J.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
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Respectfully submitted,
s/Alan M. Petrov
ALAN M. PETROV (0020283)
JAMIE A. PRICE (0084178)
Gallagher Sharp
Sixth Floor Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
(216) 241-5310 (phone)
(216) 241-1608 (fax)
apetrov@gallaghersharp.com
jprice@gallaghersharp.com
Counsel for Defendants
CERTIFICATE OF SERVICE
The foregoing Defendants’ Motion for Extension of Time to Complete Discovery has
been filed via the Court’s electronic filing system and served via electronic mail upon the
following this 17" day of November, 2014:
Scott E. Stewart
Stewart & DeChant Co., L.P.A.
900 Baker Building
1940 East Sixth Street
Cleveland, Ohio 44114-2210
Counsel for Plaintiffs
Jennifer L. Brunner
Brunner Quinn
35 N. Fourth Street, Ste. 200
Columbus, Ohio 43215
Counsel for Counterclaim Plaintiffs
Michael I. Bernstein
The Bernstein Law Firm
1688 Meridian Avenue, Ste. 418
Miami Beach, Florida 33139
Counsel for Counterclaim Defendants
s/Alan M. Petrov
ALAN M. PETROV (0020283)
JAMIE A. PRICE (0084178)Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
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STATE OF OHIO
)
) SS AFFIDAVIT OF ALAN PETROV, ESQ.
COUNTY OF CUYAHOGA )
Now comes Alan Petrov, Esq., first having been duly sworn according to law, and hereby
deposes and states as follows:
1. I am an attorney licensed to practice law in the state of Ohio and a partner in the
firm of Gallagher Sharp. I have personal knowledge of the information and events contained in
this Affidavit, and I am competent to provide this Affidavit.
2. I am lead counsel representing Rick L. Brunner, Patrick M. Quinn, Steven M.
Brown, The Brunner Law Firm Co. LPA and the Brunner Firm Co. LPA, d/b/a Brunner Quinn
(collectively “Defendants”) in the defense of the complaint for legal malpractice filed in this
matter, captioned Mariner Health Care, Inc. et al. v. Richard L. Brunner et al.
3. Defendants have issued Three Sets of Interrogatories and Five Sets of Requests
for Production of Documents in this case. All of the documents, communications and
information sought by Defendants are vital to the defense of their case. Defendants, though their
counterclaim counsel, have also issued discovery requests with respect to their Counterclaim.
Plaintiffs’ responses to the various discovery requests have consistently been inadequate.
Likewise, Plaintiffs have been resistant to submitting certain of their witnesses for deposition.
As a result, Defendants, though their counterclaim counsel, have filed two previous motions to
compel, one relating to Plaintiffs’ deficient responses to written discovery requests and the other
relating to Plaintiffs’ refusal to produce a corporate representative for deposition. Defendants
also addressed deficiencies with Plaintiffs’ discovery responses with Plaintiffs’ counsel, and filed
a motion to compel on June 6, 2014, based upon one of Plaintiffs’ key witnesses’, Avi Klein,
refusal to appear for deposition.
EXHIBIT
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4, On November 7, 2014, I conducted the deposition of Avi Klein, the owner and
manager of nine of the Plaintiffs. While Mr. Klein appeared for his deposition, he asserted his
Fifth Amendment rights and refused to answer a single question posed by Defendants’ counsel
other than his name and his city of residence.
5. On November 6, 2014, I conducted the deposition of Rebecca Rivera, one of the
corporate representatives identified and produced by Plaintiffs. Ms. Rivera testified as to the
existence correspondence and documents that would be responsive to these discovery requests
that Defendants do not have and that Plaintiffs have failed to produce.
6. With Mr. Klein’s refusal to answer questions about this case, Ms. Rivera’s
testimony confirming the existence of relevant documents vital to the defense of this case that
have not been produced to Defendants, and Plaintiffs’ refusal to respond to Defendants’
discovery requests, Defendants are at a severe disadvantage and are prejudiced in defending
themselves against the malpractice claims asserted, and lack the evidence necessary to complete
discovery and prepare a dispositive motion. Accordingly, Defendants need additional time in
which to complete discovery, i.e. receive and analyze Plaintiffs’ responses and production in
response to Defendants’ previously issued discovery requests, and thereafter draft a dispositive
motion.
FURTHER AFFIANT SAYETH NAUGHT.
R22 ve
ALAN PETROV, ESQ.
SWORN TO AND SUBSCRIBED in my presence this _/ 7 th, of November, 2014.
NOTARY PUBLIC . : HSfoug0C172
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Mariner Health Care, Inc., et al., ) CASE NO. 12CV014618
)
Plaintiffs, ) JUDGE PATRICK SHEERAN
)
vs. )
)
Richard [sic] L. Brunner, et al., )
)
Defendants. )
COUNTERCLAIMANT THE BRUNNER FIRM CO., L.P.A.’S
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
FROM PLAINTIFFS AND FOR DISCOVERY SANCTIONS
Counterclaimant The Brunner Firm Co., L.P.A. d.b.a. Brunner Quinn (hereinafter
referred to “BQ”), by and through the undersigned counsel, hereby respectfully moves this Court
pursuant to Civ. R. 37(A) and Civ. R 37(D), for an order compelling Plaintiffs to produce all
documents requested from them five (5) months and one (1) week ago, and of which not one
document by any Plaintiff has been produced. Nor has any Plaintiff produced a single privilege
logs, nor any document production whatsoever, despite a conference with Court more than two
(2) months ago, which was followed by significant efforts by Counterclaimant and its counsel to
elicit voluntary discovery from the Plaintiffs as documented in Exhibits 1 through 1.11 attached
hereto. Counterclaimant and other Defendants have produced seven (7) boxes of documents to
Plaintiffs’ counsel in Cleveland, and each has answered forty (40) interrogatories, five (5)
additional requests for production of documents and fourteen (14) requests for admissions, all
of which more fully appears in the memorandum below. Further,
Counterclaimant BQ moves that this Court, pursuant to (i) Civ. R. 37(D), award
sanctions against the Plaintiffs, including sanctions under Civ. R. 37(B)(2), and (ii) pursuant to
Civ. R. 37(A)(4), award attorneys fees incurred for attorney time expended in (a) complying
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with Civ. R. 37(E) and Loc R. 47.1 and (b) in preparing and filing this motion. The grounds for
all of the above are set forth more fully in the Memorandum in Support below.
Respectfully submitted,
Zs/ Jennifer L. Brunner
Jennifer L. Brunner (0012998)
Email: rlb@brunnerlaw.com
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
BRUNNER QUINN
35 North Fourth Street, Suite 200
Columbus, Ohio 43215
Telephone: (614) 241-5550
Facsimile: (614) 241-5551
Attorneys for Counterclaimant The Brunner Firm
Co L.P. A. d.b.a. Brunner Quinn
MEMORANDUM IN SUPPORT
I. FACT!
The Brunner Firm Co., LPA d.b.a Brunner Quinn (hereinafter referred to as “BQ”), was
originally sued in the Cuyahoga County Court of Common Pleas in a matter of litigation entitled,
Mariner Health Care, Inc., et al v. Richard (sic) L. Brunner’, et al., Cuyahoga Court of Common
Pleas, Case No. CV-11-758900, assigned to the docket of J. McMonagle (hereinafter referred to
as the “prior litigation”). See, Certification of Counsel attached hereto as Exhibit 1 at 13. In the
prior litigation the Defendants, including BQ, were served with Plaintiffs’ request for production
of documents. Id. at 14. In response to the request for production of documents Defendants and
Counterclaimant in the action served seven (7) boxes of documents to Plaintiffs’ counsel in
Cleveland, Ohio, as evidenced by the letter from Defendants’/Counterclaimant’s then and now
| There is no attorney licensed in the state of Ohio by the name of Richard L. Brunner, and none of the Plaintiffs
ever dealt with a Richard L. Brunner, Esq. from Ohio. The Florida lawyers now representing Plaintiffs in regard to
Counterclaimant BQ’s counterclaim and third-party complaint in the instant action, acted through a Cleveland-based
law firm, and each of them have persisted in both the prior litigation and herein in referring to a “Richard” (sic) L.
Brunner whether through ignorance of the facts or some kind of inappropriate gamesmanship. Plaintiffs were forced
to admit in their answer to paragraph 2 of the Counterclaim that it was Rick L. Brunner that was retained by them,
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current defense counsel, Mr. Alan Petrov, a copy which is attached hereto and incorporated
herein as Exhibit 1.1. Id at 15. The prior litigation was voluntarily dismissed by Plaintiffs, and
this same matter was subsequently re-filed before this court by the same thirty-two plaintiffs. Id
at 16.
After the prior litigation was re-filed before this court, BQ, along with the three other
defendants were served with interrogatories, requests for admission and requests for production
of documents, and they each answered forty (40) interrogatories, five (5) requests for
production of documents and did produce those documents, and fourteen (14) requests for
admissions, as evidence by their joint response, of which a copy of the first and last page is
attached hereto and incorporated herein as Exhibit 1.2. Id at 17. On February 15, 2013, BQ
served its request for production of documents on each of the thirty-two plaintiffs, a
representative copy of which is attached hereto as Exhibit 1.3 and being the discovery served
on the primary plaintiff, Mariner Health Care, Inc. Id at 98. Each discovery request was
accompanied by a discovery letter, a copy of which is attached hereto and incorporated herein as
Exhibit 1.4. Id at 19. Each respective cover letter to each Plaintiff concluded with the following
request:
REQUESTS TO MEET AND CONFER PRIOR TO ANY DISCOVERY MOTIONS
In the event that you object to any of the discovery or intend to a seek a protective order,
jt is my request, pursuant to the applicable civil and local rules of the court, that we
engage in a pre-motion meeting and/or conference in order to attempt to avoid
unnecessary motions practice with respect to your objection or seeking of protection
with regard to the discovery order. I have often found that counsel are able to amicably
agree with regard to limiting the scope of discovery or some other accommodation in
order to avoid unnecessary motions practice. I respectfully request that you contact me
concerning any arrangements for conferences regarding discovery issues before any
motion is filed. Id at {10.
? BQ literally served a separate Request for Production of Documents on each of the 32 Plaintiffs. The areas of
production (18) in total were the same to each. To avoid unnecessary use of the Court’s filing space, albeit
electronic, only one of the Requests for Production of Documents has been attached, as an example. If the Court or
Plaintiffs so desire, the remaining thirty-one (31) other Requests for Production of Documents and their respective
cover letters can be filed in the record.
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Upon request of Plaintiffs’ counsel, BQ granted an extension to respond to its discovery
requests. Id. at {/]11-14. When the extended time expired for the responses, BQ received
objections to every single discovery request for each of the thirty-two (32) Plaintiffs and did not
receive a single piece of paper or electronic document. A copy of an example of the objections is
attached hereto and incorporated herein as Exhibit 1.5.3 Id. at 116. Because the parties were
not able to move discovery forward, BQ requested a discovery conference with the Court, a copy
of which is attached hereto and incorporated herein as Exhibit 1.6. Id. at 917. The Court
ordered the parties to a status conference that was held with the Court on May 20, 2013, and the
Court generously provided the parties nearly an hour and a half of its time. Id at 118. Despite all
the efforts set forth in Exhibit to date, (Id. at 192 Exhibits 1.7 through 1.11 ) some five
(5) months after the Requests were served, not : of paper has been produced yet, as
compared to the equivalent of the seven (7) boxes produced by the Defendants some two (2)
years ago. Id. at 1929-32
IL. LAW & ARGUMENT
A, Plaintiffs have refused to provide any documentation or responses
and should be compelled to respond pursuant to Civ. R. 37.
Rule 37, Ohio Rules of Civil Procedure, provides in relevant part as follows:
(A) Motion for order compelling discovery
Upon reasonable notice to other parties and all persons affected thereby,
a party may move for an order compelling discovery as follows:
() Appropriate court. A motion for an order to a party or a deponent
shall be made to the court in which the action is pending.
(2) Motion. If... a party fails to answer an interrogatory submitted
under Rule 33, or if a party, in response to a request for inspection
> Only one of the responses attached hereto as an example, because there are thirty-two of them. To avoid
unnecessary use of filing space, albeit electronic, only one of the Plaintiffs’ written responses to the 32 Requests for
Production of Documents has been attached as an example. If the Court or Plaintiffs so desire the remaining 31
other written responses to the 32 Requests for Production of Documents and their respective cover letter can be filed
in the record.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
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18
OB
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.
(4) Award of expenses of motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent who
the party or attori dvisin
both of them to pay to the moving party the reasonable expenses incurred
in obtaining the order, including attorney's fees, unless the court finds
that the opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust. (emphasis added)
If the motion is granted in part and denied in part, the court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner. ...
(B) Failure to comply with order.
(2) If any party ... fails to ... provide or permit discovery ... the court in
which the action is pending may make such orders in regard to the failure
as are just, and among others the following:
(a) An order that ... or any other designated facts shall be taken to
be established for urposes of the action in dance with
the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or
oppose designate ims or def , or prohibiting him from
introducing designated matters in evidence;
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by
default against the disobedient party;
(@) Failure of party to attend at own deposition or serve
answers to interrogatories or respond to request for inspection.
If a party ... fails . . . (3) to serve a written response to a request for
inspection submitted under Rule 34, after proper service of the request,
the court in which the action is pending on motion and notice may make
such orders in regard to the failure as are just, and among others it may
take any action authorized under subsections (a), (b), and (c) of
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subdivision (B)(2) of this rule. In lieu of any order or in addition
theret rt_shall require the party failing t r_the
attorney advising him or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the court
expre ssly finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the
ground that the discovery sought is objectionable unless the party failing to
act has applied for a protective order as provided by Rule 26(C).
(E) Before filing a motion authorized by this rule, the party shall make a
reasonable effort to resolve the matter through discussion with the
attorney, unrepresented party, or person from whom discovery is sought.
The motion shall be accompanied by a statement reciting the efforts made
to resolve the matter in accordance with this section. (emphasis supplied).
Here, as more fully set forth above, Counterclaimant properly served Plaintiffs with
discovery requesting documents critical to its claims and that address the very core of this
action. Although Defendants and Counterclaimant responded to Plaintiff's discovery, each
Plaintiff's responses the respective discovery served upon it by the Counterclaimant is plainly
insufficient and out of rule in that each Plaintiff has failed to provide any documents, or any
privilege logs.
B. Counterclaimant has been denied any document production and
denied even privilege logs regarding each Plaintiff's respective
refusal to produce any documents.
The Civil Rules provide that a party 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.” Civ. R. 26(B)(1). “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.” Jd. Further, Civ. R. 26(B)(6) governs the procedure parties
must follow when withholding information and/or documents on the basis of privilege, and
provides, in relevant part as follows:0C172
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(a) Information withheld. When information subject to discovery is withheld
on a claim that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a
description of the nature of the documents, communications, or
things not produced that is sufficient to enable the demanding
party to contest the claim.
(emphasis supplied).
In McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441, 2001-Ohio-1517,
766 N.E.2d 1015 (9th Dist.), the court of appeals addressed the effect of a party's failure to
comply with the above requirement in Civ. R. 26(B)(6) that a privilege log be provided along
with any claim of privilege in discovery responses. Id. at (78-9. In that case, the party claiming
that certain requested documents were privileged, and thus, exempt from disclosure, withheld
such documents without providing a privilege log. Id. at $3, 10. The discovering party then
sought to compel the production of withheld documents, and the trial court granted such
request.
On appeal, the district court rejected appellant Goodyear Tire’s argument that the trial
court erred in ordering production of documents and that materials it claimed were exempt
from disclosure due to privilege. Id. at $11. In rejecting this argument, the court noted that it
was only after the appellee’s motion to compel was filed that appellant Goodyear “elaborated
upon the privileged nature of these documents and material and provided corroboration.” Id.
However, the court held that such untimely elaboration and corroboration were of no effect as
the “appellant had already waived these privileges by failing to list initially the privileged
documents and material and by failing to provide supporting evidence in its motion for
protective order.” Jd. (emphasis supplied).
As such, the court went on to hold that because the appellant had not properly asserted
privilege, “appellant cannot now provide evidence to support its contention that the documents
and material are privileged, even if these items would have been considered privileged if
asserted timely.” Id. citing Peat, Marwick, Mitchell & Co. v. W., 748 F.2d 540, 542 (10th Cir.
1984) (holding “[e]ven though it does not seem seriously disputed that the privilege would have
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attached if the objection had been timely and adequately asserted, that such a showing had not
been made when the trial court was called upon to make its ruling defeats the privilege.”).
The same issue was addressed by the Seventh District Court of Appeals in Hartzell v.
Breneman, 7th Dist. No. 10MA-67, 2011-Ohio-2472, 2011 WL 2112548. The Hartzell court
discussed the procedure for withholding information and documentation on claim of privilege
and held that “[w]hen information subject to discovery is withheld on a claim that it is
privileged, the claim shall be made expressly and shall be supported by a description of the
nature of the documents, communications, or things not produced that is sufficient to enable the
demanding party to contest the claim. Civ.R. 26(B)(6)(a). This rule essentially requires the
construction of a privilege log.” Id. at §19 (emphasis supplied). The court went to discuss this
requirement and stated as follows:
“the burden is on the party claiming privilege so that an in-camera hearing is
unnecessary if that party fails to show a factual basis for believing in good faith
that the records are not properly discoverable. .. Moreover, a claim of
privilege can be waived where no privilege log is submitted.
McPherson v. Goodyear Tire & Rubber Co., 9th Dist. No. 20579, 2001—Ohio—
1517, J 11, 146 Ohio App.3d 441, 766 N.E.2d 1015, citing Peat, Marwick, Mitchell
& Co. v. West (C.A.10, 1984), 748 F.2d 540, 542. See, also, Huntington Nail.
Bank v. Dixon, 8th Dist. No. 93604, 2010-Ohio—4668, {| 22-25 (stating that the
trial court had discretion to determine waiver on a case-by-case basis, implying
that the refusal to allow a late privilege log would not be disturbed).
Civ.R. 26(B)(6)(a) specifies that when information subject to discovery is
withheld on a claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and shall be supported
by a description of the nature of the documents, communications, or things not
produced that is sufficient to enable the demanding party to contest the claim. As
the rule does not provide an exception to the privilege log requirement,
appellants should have collected their own medical records, constructed a
privilege log for records it deemed not causally or historically related to the
action, and provided the other records and the privilege log to Allstate, at which
point Allstate could have determined whether a motion to compel was necessary,
or to the trial court for an in-camera inspection.
Appellants failed to follow the proper procedure under the Civil Rules and thus
were not entitled to an in-camera review. It was their burden to show that the
records were not causally or historically related. See Patterson, 7th Dist. No.
O3BE1 at { 19. See, also, Waldmann,_48 Ohio St.2d at 178, 358 N.E.2d 521,
-8-0C172
ia fanktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
Without a privilege log and a provision of the records to the trial
court, this burden could not be met, allowing the trial court to compel
production of the records.”
Id. at 1923-26 (emphasis supplied).
Accordingly, appellate courts have ruled that the appellant’s failure to follow the proper
procedure as provided by Civ. R. 26(B)(6) by providing unprivileged documents and by
preparing and filing a privilege log as to the records claimed to be exempt from disclosure, that
lower courts are correct in ruling that the appellants had waived their claim of privilege as to the
documents at issue.
In the instant case, there is no dispute that each Plaintiff has objected to essentially every
discovery request from Counterclaimant, and ninety (90) days of attempted dispute resolution
has produced no production. There likewise can be no dispute that each Plaintiff has wholly
failed to provide any privilege log in so objecting as required by Civ. R. 26(B)(6) which would
allow the Plaintiffs to contest their repeated objection of privilege to every document requested
from them. Thus, Plaintiff requests that this Court rule the Defendants have waived any
privilege that may have existed with regard to the requested documents and order all requested
documents produced. See Hartzell, supra.
IL. CONCLUSION
For all of the foregoing reasons, this Court is respectfully requested to enter an order
requiring Plaintiffs to produce all documents requested from them. Counterclaimant BQ
contends that this Court should enter an order (a) pursuant to Civ. R. 37(A)(4) and (D) awarding
the expenses, including attorneys’ fees, incurred in or attorney time expended in the preparation
of this filing and complying with Civ. R. 37(E) and Loc. R. 47.01 as outlined in Exhibit 1 and the
Exhibits thereto 1.1 through 1.11, and (b) for sanctions pursuant to Civ. R. 37(D) and B(2)(a) or
(b) or (c), including but not limited to disallowing any response to Counterclaimant’s motion for
summary judgment, striking their answer to the Counterclaim and deeming them in default for
-9-Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L22
0:
the same, or dismissal of Plaintiffs’ complaint herein or granting of the Counterclaimant’s and
Defendants’ pending motion for Summary Judgment for their unwarranted, egregious and
sanctionable abuse of the discovery process.
Respectfully submitted,
Ls/ JenniferL. Brunner
Jennifer L. Brunner (0012998)
Email: tlb@brunnerlaw.com
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
BRUNNER QUINN
35 North Fourth Street, Suite 200
Columbus, Ohio 43215
Telephone: (614) 241-5550
Facsimile: (614) 241-5551
Attorneys for Counterclaimant The Brunner Firm
Co L.P. A. d.b.a. Brunner Quinn
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing
document was served by ECF filing the same this 24* day of July 2013 upon the following:
Scott Stewart Michael I. Bernstein, PA
The Baker Building THE BERNSTEIN LAW FIRM
1940 East Sixth Street, Suite 900 1688 Meridian Avenue, Suite 418
Miami Beach, FL 33139
Facsimile: (305) 781-4512
michael @bernstein-lawfirm.com
brian@bernstein-lawfirm.com
Alan Petrov
Jamie Price
Gallagher Sharp
6% Floor, Buckley Building
1501 Euclid Avenue
Cleveland, OH 44115 és/ Jennifer L, Brunner
Apetrov@gallaghers ni Jennifer L. Brunner (0024440)
iprice @gallaghersharp.. com Email: Ib@brunm: y
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
-10-Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L23
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Mariner Health Care, Inc., et al., ) CASE NO. 12CV014618
) JUDGE PATRICK E. SHEERAN
Plaintiffs, )
)
vs. )
)
Richard [sic] L. Brunner, et al., )
)
Defendants. )
COUNTERCLAIMANT THE BRUNNER FIRM CO. L.P.A’S
MOTION TO COMPEL PLAINTIFF CLEVELAND DYNAMIC OPERATING
COMPANY, LLC TO APPEAR FOR DEPOSITION AND FOR SANCTIONS
Counterclaimant The Brunner Firm Co. L.P.A. db.a. Brunner Quinn
(hereinafter referred to “BFC LPA”), by and through the undersigned counsel,
hereby respectfully moves this Court pursuant to Civ. R 37(D), for an order
compelling Plaintiff Cleveland Dynamic Operating Company, LLC (“Plaintiff
Cleveland”) to appear for its deposition for the reason that said Plaintiff, after
multiple months of scheduling attempts, failed to appear at its agreed upon and
noticed deposition and now refuses to give an alternative date for its deposition in
Columbus, Ohio.
Further, Counterclaimant BFC LPA moves this Court pursuant to Civ. R.
37(D) for an award of sanctions against Plaintiff Cleveland, including fees and costs
associated with preparing and filing this Motion and in scheduling the noticed
deposition at which Plaintiff Cleveland failed to appear. The grounds for all of the
above are set forth more fully in the Memorandum in Support below.
EXHIBIT
| C
tabbles*Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L24
Respectfully submitted,
/s/ Jennifer L. Brunner
Jennifer L. Brunner (0024440)
Email: jlb@brunnerlaw.com
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
BRUNNER QUINN
35 North Fourth Street, Suite 200
Columbus, Ohio 43215
Telephone: (614) 241-5550
Facsimile: (614) 241-5551
Attorneys for Counterclaimant The Brunner
Firm Co LP. A. d.b.a. Brunner Quinn
MEMORANDUM IN SUPPORT
I. FACTS
This Court is aware by virtue of the status conference held on May 20, 2013,
and as requested in Exhibit 2!, of BFC LPA’s attempts to schedule a deposition of
the first of the eighteen (18) Plaintiffs, Plaintiff Cleveland. See Certificate of
Counsel attached hereto as Exhibit 1 and correspondence between counsel
demonstrating BFC LPA’s attempts to schedule Plaintiff Cleveland’s deposition
attached hereto as Exhibits 2-18. On July 8, 2013, counsel participated in a
conference call regarding the deposition scheduling, and thereafter BFC LPA issued
the Notice of Deposition of Plaintiff Cleveland to be conducted on August 12, 2013
as agreed upon by counsel. See Exhibit 7.
' Exhibit 1 to this Motion is the certification of counsel pursuant to Civ. R. 37(E) reciting the reasonable efforts of
BFC LPA to resolve this discovery dispute prior to filing the instant Motion.
2Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L25
On August 8, 2013, Plaintiffs advised BFC LPA that August 12, 2013, might
not be a convenient date and advised that Plaintiff Cleveland would not attend the
deposition noticed for that date. See email correspondence chain between counsel
attached as Exhibit 10. Thereafter, BFC LPA sent the letter attached hereto as
Exhibit 11 in which the final paragraph asked for alternative dates. See Exhibit 11.
Instead of providing alternative dates for Plaintiff Cleveland’s deposition, the
Plaintiffs sent the letter dated August 15, 2013? indicating that BFC LPA would be
limited to three (8) depositions for the eighteen (18) Plaintiffs, and that the
depositions would have to be taken in Atlanta, Miami and somewhere in the
country of Israel. See Exhibit 12 attached hereto. BFC LPA responded with Exhibit
13.
Il. LAW & ARGUMENT
A. Plaintiff Cleveland failed to appear at its deposition and now
refuses to give an alternate date for deposition in Franklin County
and which it is not being simultaneously deposed with eight (8)
other Plaintiffs.
Civil Rule 37, Ohio Rules of Civil Procedure, provides in relevant part as follows:
(B) Failure to comply with order.
(2) If any party ... fails to ...provide or permit discovery ... the
court in which the action is pending may make such orders in
regard to the failure as are just, and among others the following:
or of i shall be taken
(a) An order that
? Attached hereto as Exhibit 12.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L26
(b) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence;
(c) An order striking out pleadings or parts thereof, or staying
further Proveedings until the order j is obeyed ¢ or * dismissing the
judgment by default ¢ tho disobedient
(D) Failure of party to attend at own deposition or serve answers
to interrogatories or respond to request for inspection.
If a party or an officer, director, or a managing agent of a party or
a person designated under Rule 30(B)(5) or Rule 31(A) to testify
on behalf of a party fails (1) to appear before the officer who is to
take his deposition, after being served with a proper notice,...,
the court in which the action is pending on motion and notice
may make such orders in regard to the failure as are just, and
among others it may take any action authorized under
subsections (a), (b), and (c) of subdivision (B)(2) of this rule. In
lieu of any order or in addition thereto, the court shall require
pay the reasonable exp enses, including attorn ’ ey's fees, caused by
the failure, unless the court expressly finds that the failure was
substantially justified or that other circumstances make an
award of expenses unjust.
The failure to act described in this subdivision may not be
excused on the ground that the discovery sought is objectionable
unless the party failing to act has applied for a protective order
as provided by Rule 26(C).
(E) Before filing a motion authorized by this rule, the party shall
make a reasonable effort to resolve the matter through discussion
with the attorney, unrepresented party, or person from whom
discovery is sought. The motion shall be accompanied by a
statement reciting the efforts made to resolve the matter in
accordance with this section. (emphasis supplied).
In these circumstances, Plaintiff Cleveland is refusing to appear in this
forum and argues through its attorney in Exhibit 12 that BFC LPA must depose itsFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618.
0C172 - L27
representative in Miami. Plaintiff Cleveland is not permitted to require depositions
to take place in Miami, Florida. First, no areas of inquiry have been stated pursuant
to Civ. R 30(B)) for any Plaintiff other than Plaintiff Cleveland. More
importantly, Civ. R. 26(D) provides in its relevant part as follows:
“(D) Sequence and timing of discovery. Unless the court upon motion, for
the convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence and
the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party’s discovery.”
Mr. Bernstein, as counsel for the Plaintiffs, is attempting to control the
sequence and timing of BFC LPA’s discovery, even claiming in Exhibit 12 that BFC
LPA is not entitled to discovery until after the Court rules on BFC LPA’s Motion for
Leave to Amend Counterclaim.? See Exhibit 12 at page 2 in last 2 sentences of the
next to the last paragraph.
B: BFC LPA has been denied depositions in the same manner that it has
been denied document production for approximately the last eight (8)
months.
This Court already has before it BFC LPA’s motion to compel production of
documents which demonstrates that while all Defendants, including the BFC LPA,
have produced in discovery over seven (7) boxes of information to the Plaintiffs, the
Plaintiffs, through their counsel Mr. Bernstein, have continued to refuse to produce
documents since the beginning of the year. As demonstrated in the Certificate of
Counsel attached hereto as Exhibit1, and as documented by Exhibits 2 through 183,
BFC LPA cannot conduct one simple deposition of one of the eighteen (18) Plaintiffs
> Counsel for Plaintiff repeatedly and inaccurately refers to motions filed by Counterclaimant BFC LPA as
“Defendant” BFC LPA and again makes such misstatement in Exhibit 12.
5Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L28
0:
18
without a continual frustration of the process by Mr. Bernstein, as pro hac vice
counsel to the Plaintiffs. The latest being the attempt in Exhibit 12 @ to limit BFC
LPA to three (3) mass depositions; (i) to designate who will be deposed without
knowing the Civ. R. 30(B)G) areas of inquiry; (iii) to require the depositions to take
place in Atlanta, Miami and an unknown place in the country of Israel; and Gv) to
withhold depositions until the Court rules upon a pending motion to amend. One
possible sanction the court might consider pursuant to Civ. R. 27(B) is revoking Mr.
Bernstein’s pro hae vice privileges and requiring Plaintiffs to obtain or use their
existing Ohio counsel.
Il. CONCLUSION
For all of the foregoing reasons, this Court should enter an order requiring
Plaintiff Cleveland Dynamic Operating Company, LLC to appear for its deposition
and award sanctions against Plaintiff Cleveland, including fees and costs associated
with preparing and filing this Motion and in scheduling the noticed deposition at
which Plaintiff Cleveland failed to appear.
Respectfully submitted,
/s/ Jennifer L. Brunner
Jennifer L, Brunner (0024440)
Email: jlb@brunnerlaw.com
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
BRUNNER QUINN
35 North Fourth Street, Suite 200
Columbus, Ohio 43215Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L29
Telephone: (614) 241-5550
Facsimile: (614) 241-5551
Attorneys for Counterclaimant The Brunner
Firm Co L.P. A. d.b.a. Brunner Quinn
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the
foregoing document was served by ECF filing the same this 22nd day of August
2013 upon the following:
Scott Stewart
The Baker Building
1940 East Sixth Street, Suite 900
Cleveland, OH 44114-2223
SStewart@stewartdechant.com
Michael I. Bernstein, PA
THE BERNSTEIN LAW FIRM
1688 Meridian Avenue, Suite 418
Miami Beach, FL 33139
Facsimile: (805) 781-4512
michael@bernstein-lawfirm.com
brian@bemstein-lawfirm.com
Alan Petrov
Jamie Price
Gallagher Sharp
6th Floor, Buckley Building
1501 Euclid Avenue
Cleveland, OH 44115
APetrov@gallaghersharp.com
jprice@gallaghersharp.com
/s/ Jennifer L. Brunner
Jennifer L. Brunner (0024440)
Email: jlb@brunnerlaw.com
Peter A. Contreras (0087530)
Email pac@brunnerlaw.com
7Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618
0C172 - L30
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
MARINER HEALTH CARE, INC. etal, ) CASE NO: 12CV014618
)
Plaintiffs, ) JUDGE PATRICK E, SHEERAN
)
v. )
) DEFENDANTS’ MOTION TO
RICHARD L. BRUNNER, et al., ) COMPEL DEPOSITION AND MOTION
) FOR PROTECTIVE ORDER
Defendants, )
Pursuant to Civ.R. 26 and 37, Defendants Rick L. Brunner, Patrick M. Quinn, Steven M.
Brown, The Brunner Firm Co., L.P.A., and The Brunner Firm Co., L.P.A. dba Brunner Quinn
(collectively “Defendants”), by and through the undersigned counsel, hereby move this Court for
an order compelling Avi Klein, the manager and corporate designee of nine of the Plaintiffs, to
appear for his previously scheduled and agreed-upon deposition. Despite agreeing to submit
Preview
0c172 14 ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO MARINER HEALTH CARE, INC. etal., ) © CASE NO: 12CV014618 ) Plaintiffs, ) JUDGE PATRICK E. SHEERAN ) v. ) ) DEFENDANTS’ MOTION FOR RICHARD L. BRUNNER, et al., ) EXTENSION OF TIME TO COMPLETE ) DISCOVERY ) Defendants. Defendants Rick L. Brunner, Patrick M. Quinn, Steven M. Brown, The Brunner Firm Co., L.P.A., and The Brunner Firm Co., L.P.A. dba Brunner Quinn (collectively “Defendants”), by and through the undersigned counsel, request an extension of time in which to complete fact discovery. As set forth in Defendants’ Motion to Compel, filed contemporaneously with this Motion, and as will be discussed in this Motion, Plaintiffs’ stonewalling tactics with respect to discovery have prevented Defendants from completing their discovery necessary to defend against Plaintiffs’ claims. Accordingly, Defendants need additional time to complete their existing discovery with Court supervision to ensure Plaintiffs’ compliance. Defendants suggest that they be granted an additional forty-five days, until on or before January 1, 2015, to complete their fact discovery. A memorandum in support of this Motion is attached hereto and incorporated by reference herein.0c172 pe ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 Respectfully submitted, s/Alan M. Petrov ALAN M. PETROV (0020283) JAMIE A. PRICE (0084178) Gallagher Sharp Sixth Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 (216) 241-5310 (phone) (216) 241-1608 (fax) apetrov@gallaghersharp.com jprice@gallaghersharp.com Counsel for Defendants0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - L6é MEMORANDUM IN SUPPORT Plaintiffs have a history of not properly responding to discovery in this case. Defendants have issued Three Sets of Interrogatories and Five Sets of Requests for Production of Documents in this case.' All of the documents, communications and information sought by Defendants are vital to the defense of their case. Defendants, though their counterclaim counsel, have also issued discovery requests with respect to their Counterclaim. Plaintiffs’ responses to the various discovery requests have consistently been inadequate. This despite the fact that Defendants’ produced seven (7) boxes of documents to Plaintiffs in response to discovery requests in the previously-filed malpractice case and have produced thousands of pages of e-mails and electronic documents requested by Plaintiffs. Likewise, Plaintiffs have been resistant to submitting certain of their witnesses for deposition. As a result, Defendants, though their counterclaim counsel, have filed two previous motions to compel, one relating to Plaintiffs’ deficient responses to written discovery requests and the other relating to Plaintiffs’ refusal to produce a corporate representative for deposition.” These motions were filed on July 24, 2013 and August 22, 2013, respectively. Defendants also addressed deficiencies with Plaintiffs’ discovery responses with Plaintiffs’ counsel, and filed a motion to compel on June 6, 2014, based upon one of Plaintiffs’ key witnesses’, Avi Klein, refusal to appear for deposition? A common theme among Plaintiffs’ responses to Defendants’ discovery requests has been that Defendants should already have the documents they requested in their file. As addressed in their Motion to Compel, filed contemporaneously with this Motion, not only is this response improper under the Civil Rules, but Defendants do not have the information they have ' See Affidavit of Alan Petrov, attached hereto as Exhibit A. The time in which Plaintiffs have to respond to Defendants’ Third Set of Interrogatories and Fourth and Fifth Sets of Requests for Production has not yet expired, ? True and accurate copies of Defendants’ Motions to Compel are attached hereto as Exhibits B and C, respectively. Due to size, exhibits submitted with these motions are not being attached. > A true and accurate copy of Defendants’ Motion to Compel is attached hereto as Exhibit D. Due to size, exhibits submitted with the motion are not being attached.0C172 pp ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 requested in their possession. As a result of Plaintiffs’ initial lack of compliance with the discovery rules, Defendants issued several sets of targeted discovery requests in the hopes that Plaintiffs will finally produce the requested information. This has been to no avail. As set forth in their Motion to Compel, Plaintiffs’ have failed to produce a single document in response to Defendants’ Second and Third Sets of Requests for Production of Documents and have failed to sufficiently and completely answer the interrogatories in Defendants’ Second Set of Interrogatories. Plaintiffs’ stonewalling tactics exemplified though the depositions of two of their corporate representatives: Avi Klein and Rebecca Rivera. Avi Klein is one of the key witnesses in this case. He is the owner and manager of nine of the Plaintiffs: FMSC Leasehold, LLC, FMSC Collierville Operating Company, LLC; FMSC Memphis Operating Company, LLC; DMSC Leasehold, LLC; Dynamic Yazoo City Operating Company, LLC; Dynamic Natchez Operating Company, LLC; Dynamic Indianola Operating Company, LLC; Dynamic Columbia Operating Company, LLC; and Dynamic Cleveland Operating Company, LLC. It is these nine Plaintiffs that claimed that funds were due to them in the underlying litigation. Mr. Klein’s importance as a witness is demonstrated by Plaintiffs’ designation of him as the corporate designee of the nine aforementioned Plaintiffs and listing him as a person with knowledge as to the allegations in this case, as well as their submission of his affidavit in support of Plaintiffs’ brief in opposition to Defendants’ summary judgment motion with respect to the counterclaim, filed with the Court on August 14, 2013.4 As is made clear though documents and information * See Plaintiffs’ responses to Defendants’ First Set of Interrogatories at Interrogatory No. 8, a true and accurate copy of which is attached hereto as Exhibit E, Plaintiffs’ Second Supplemental Disclosure of Witnesses, a true and accurate copy of which is attached hereto as Exhibit F, Plaintiffs’ supplemental responses to Defendants’ First Set of Interrogatories at Interrogatory No. 4, a true and accurate copy of which is attached hereto as Exhibit G, August 15, 2013 Letter from Michael Bernstein to Jennifer Brunner, a true and accurate copy of which is attached hereto as Exhibit H. A true and accurate copy of Mr. Klein’s affidavit is attached hereto as Exhibit I. 20c172 ne tanktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 already in Defendants’ possession, Mr. Klein was involved in both the defense of the underlying litigation as well as the counterclaim for overdue funds. Specifically, Mr. Klein was involved in and was Plaintiffs’ primary decision maker regarding discovery issues, settlement negotiations and trial strategy in the underlying Covenant Dove litigation. He even attended several days of trial. Mr. Klein was also the subject of Defendants’ earlier motion to compel, filed on June 6, 2014, based upon his refusal to appear for his deposition.> Mr. Klein’s deposition was initially requested by Defendants through their Counterclaim counsel on July 12, 2013, and by the undersigned counsel on March 21, 2014. Mr. Klein finally appeared for his deposition on November 7, 2014, which was almost five (5) months after he was originally supposed to appear. However, instead of answering the questions posed to him with respect to this malpractice case and the underlying Covenant Dove litigation, he asserted his Fifth Amendment rights and refused to answer a single question posed by Defendants’ counsel other than his name.° Presumably Mr. Klein’s assertion of his Fifth Amendment rights is based upon his indictment in connection with his nursing home in Weber City, Virginia, which is entirely unrelated to this case. Due to Mr. Klein’s delay tactics and his refusal to answer questions at his deposition, Defendants are now in the same position as they were early on in the case — without access to critical information from a key witness that they need in order to adequately defend against Plaintiffs’ claims. Rebecca Rivera was the regional accounting manager with Millennium Management that oversaw billings, collections, and guidance on Medicare and Medicaid regulations at the five nursing facilities at issue in Mississippi who was called to testify on behalf of Defendants at trial during the underlying Covenant Dove litigation to assist in establishing Defendants’ 5 See Ex. D: Defendants’ Motion to Compel. ° Petrov Affidavit at 94.0C172 ig ranktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 counterclaim and defenses to Covenant Dove’s claims.” During her deposition in this case on November 6, 2014, Ms. Rivera testified as to the existence correspondence and documents regarding these facilities and their financial information that are responsive to discovery requests issued by Defendants that Plaintiffs have failed to produce and that Defendants do not otherwise have.® In light of Mr. Klein’s refusal to answer questions at his deposition and Plaintiffs’ failure to provide documents and information responsive to Defendants’ discovery requests, all of which are vital to Defendants’ defenses in this case, Defendants need additional time in which to complete their discovery, i.e. obtain responses to their outstanding discovery with the Court’s assistance and analyze such information, and thereafter prepare a dispositive motion. Accordingly, Defendants request this extension of time in the interests of justice to allow them to properly defend against Plaintiffs’ claims. No parties will be prejudiced by the granting of this Motion. For the foregoing reasons, Defendants respectfully request and extension of time in which to complete their fact discovery, and suggest that they be granted an additional forty-five days, until on or before January 1, 2015, to complete such discovery. 7 See Deposition Transcript of Rebecca Rivera from the underlying Covenant Dove litigation at pp. 10-11. Cited pages of Ms. Rivera’s underlying deposition transcript are attached hereto as Exhibit J. ® Petrov Affidavit at J.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L10 Respectfully submitted, s/Alan M. Petrov ALAN M. PETROV (0020283) JAMIE A. PRICE (0084178) Gallagher Sharp Sixth Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 (216) 241-5310 (phone) (216) 241-1608 (fax) apetrov@gallaghersharp.com jprice@gallaghersharp.com Counsel for Defendants CERTIFICATE OF SERVICE The foregoing Defendants’ Motion for Extension of Time to Complete Discovery has been filed via the Court’s electronic filing system and served via electronic mail upon the following this 17" day of November, 2014: Scott E. Stewart Stewart & DeChant Co., L.P.A. 900 Baker Building 1940 East Sixth Street Cleveland, Ohio 44114-2210 Counsel for Plaintiffs Jennifer L. Brunner Brunner Quinn 35 N. Fourth Street, Ste. 200 Columbus, Ohio 43215 Counsel for Counterclaim Plaintiffs Michael I. Bernstein The Bernstein Law Firm 1688 Meridian Avenue, Ste. 418 Miami Beach, Florida 33139 Counsel for Counterclaim Defendants s/Alan M. Petrov ALAN M. PETROV (0020283) JAMIE A. PRICE (0084178)Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0c172 - Lil STATE OF OHIO ) ) SS AFFIDAVIT OF ALAN PETROV, ESQ. COUNTY OF CUYAHOGA ) Now comes Alan Petrov, Esq., first having been duly sworn according to law, and hereby deposes and states as follows: 1. I am an attorney licensed to practice law in the state of Ohio and a partner in the firm of Gallagher Sharp. I have personal knowledge of the information and events contained in this Affidavit, and I am competent to provide this Affidavit. 2. I am lead counsel representing Rick L. Brunner, Patrick M. Quinn, Steven M. Brown, The Brunner Law Firm Co. LPA and the Brunner Firm Co. LPA, d/b/a Brunner Quinn (collectively “Defendants”) in the defense of the complaint for legal malpractice filed in this matter, captioned Mariner Health Care, Inc. et al. v. Richard L. Brunner et al. 3. Defendants have issued Three Sets of Interrogatories and Five Sets of Requests for Production of Documents in this case. All of the documents, communications and information sought by Defendants are vital to the defense of their case. Defendants, though their counterclaim counsel, have also issued discovery requests with respect to their Counterclaim. Plaintiffs’ responses to the various discovery requests have consistently been inadequate. Likewise, Plaintiffs have been resistant to submitting certain of their witnesses for deposition. As a result, Defendants, though their counterclaim counsel, have filed two previous motions to compel, one relating to Plaintiffs’ deficient responses to written discovery requests and the other relating to Plaintiffs’ refusal to produce a corporate representative for deposition. Defendants also addressed deficiencies with Plaintiffs’ discovery responses with Plaintiffs’ counsel, and filed a motion to compel on June 6, 2014, based upon one of Plaintiffs’ key witnesses’, Avi Klein, refusal to appear for deposition. EXHIBIT ApeFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L12 4, On November 7, 2014, I conducted the deposition of Avi Klein, the owner and manager of nine of the Plaintiffs. While Mr. Klein appeared for his deposition, he asserted his Fifth Amendment rights and refused to answer a single question posed by Defendants’ counsel other than his name and his city of residence. 5. On November 6, 2014, I conducted the deposition of Rebecca Rivera, one of the corporate representatives identified and produced by Plaintiffs. Ms. Rivera testified as to the existence correspondence and documents that would be responsive to these discovery requests that Defendants do not have and that Plaintiffs have failed to produce. 6. With Mr. Klein’s refusal to answer questions about this case, Ms. Rivera’s testimony confirming the existence of relevant documents vital to the defense of this case that have not been produced to Defendants, and Plaintiffs’ refusal to respond to Defendants’ discovery requests, Defendants are at a severe disadvantage and are prejudiced in defending themselves against the malpractice claims asserted, and lack the evidence necessary to complete discovery and prepare a dispositive motion. Accordingly, Defendants need additional time in which to complete discovery, i.e. receive and analyze Plaintiffs’ responses and production in response to Defendants’ previously issued discovery requests, and thereafter draft a dispositive motion. FURTHER AFFIANT SAYETH NAUGHT. R22 ve ALAN PETROV, ESQ. SWORN TO AND SUBSCRIBED in my presence this _/ 7 th, of November, 2014. NOTARY PUBLIC . : HSfoug0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - L13 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Mariner Health Care, Inc., et al., ) CASE NO. 12CV014618 ) Plaintiffs, ) JUDGE PATRICK SHEERAN ) vs. ) ) Richard [sic] L. Brunner, et al., ) ) Defendants. ) COUNTERCLAIMANT THE BRUNNER FIRM CO., L.P.A.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM PLAINTIFFS AND FOR DISCOVERY SANCTIONS Counterclaimant The Brunner Firm Co., L.P.A. d.b.a. Brunner Quinn (hereinafter referred to “BQ”), by and through the undersigned counsel, hereby respectfully moves this Court pursuant to Civ. R. 37(A) and Civ. R 37(D), for an order compelling Plaintiffs to produce all documents requested from them five (5) months and one (1) week ago, and of which not one document by any Plaintiff has been produced. Nor has any Plaintiff produced a single privilege logs, nor any document production whatsoever, despite a conference with Court more than two (2) months ago, which was followed by significant efforts by Counterclaimant and its counsel to elicit voluntary discovery from the Plaintiffs as documented in Exhibits 1 through 1.11 attached hereto. Counterclaimant and other Defendants have produced seven (7) boxes of documents to Plaintiffs’ counsel in Cleveland, and each has answered forty (40) interrogatories, five (5) additional requests for production of documents and fourteen (14) requests for admissions, all of which more fully appears in the memorandum below. Further, Counterclaimant BQ moves that this Court, pursuant to (i) Civ. R. 37(D), award sanctions against the Plaintiffs, including sanctions under Civ. R. 37(B)(2), and (ii) pursuant to Civ. R. 37(A)(4), award attorneys fees incurred for attorney time expended in (a) complying EXHIBITFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L14 with Civ. R. 37(E) and Loc R. 47.1 and (b) in preparing and filing this motion. The grounds for all of the above are set forth more fully in the Memorandum in Support below. Respectfully submitted, Zs/ Jennifer L. Brunner Jennifer L. Brunner (0012998) Email: rlb@brunnerlaw.com Peter A. Contreras (0087530) Email pac@brunnerlaw.com BRUNNER QUINN 35 North Fourth Street, Suite 200 Columbus, Ohio 43215 Telephone: (614) 241-5550 Facsimile: (614) 241-5551 Attorneys for Counterclaimant The Brunner Firm Co L.P. A. d.b.a. Brunner Quinn MEMORANDUM IN SUPPORT I. FACT! The Brunner Firm Co., LPA d.b.a Brunner Quinn (hereinafter referred to as “BQ”), was originally sued in the Cuyahoga County Court of Common Pleas in a matter of litigation entitled, Mariner Health Care, Inc., et al v. Richard (sic) L. Brunner’, et al., Cuyahoga Court of Common Pleas, Case No. CV-11-758900, assigned to the docket of J. McMonagle (hereinafter referred to as the “prior litigation”). See, Certification of Counsel attached hereto as Exhibit 1 at 13. In the prior litigation the Defendants, including BQ, were served with Plaintiffs’ request for production of documents. Id. at 14. In response to the request for production of documents Defendants and Counterclaimant in the action served seven (7) boxes of documents to Plaintiffs’ counsel in Cleveland, Ohio, as evidenced by the letter from Defendants’/Counterclaimant’s then and now | There is no attorney licensed in the state of Ohio by the name of Richard L. Brunner, and none of the Plaintiffs ever dealt with a Richard L. Brunner, Esq. from Ohio. The Florida lawyers now representing Plaintiffs in regard to Counterclaimant BQ’s counterclaim and third-party complaint in the instant action, acted through a Cleveland-based law firm, and each of them have persisted in both the prior litigation and herein in referring to a “Richard” (sic) L. Brunner whether through ignorance of the facts or some kind of inappropriate gamesmanship. Plaintiffs were forced to admit in their answer to paragraph 2 of the Counterclaim that it was Rick L. Brunner that was retained by them, ~2-0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - Lis current defense counsel, Mr. Alan Petrov, a copy which is attached hereto and incorporated herein as Exhibit 1.1. Id at 15. The prior litigation was voluntarily dismissed by Plaintiffs, and this same matter was subsequently re-filed before this court by the same thirty-two plaintiffs. Id at 16. After the prior litigation was re-filed before this court, BQ, along with the three other defendants were served with interrogatories, requests for admission and requests for production of documents, and they each answered forty (40) interrogatories, five (5) requests for production of documents and did produce those documents, and fourteen (14) requests for admissions, as evidence by their joint response, of which a copy of the first and last page is attached hereto and incorporated herein as Exhibit 1.2. Id at 17. On February 15, 2013, BQ served its request for production of documents on each of the thirty-two plaintiffs, a representative copy of which is attached hereto as Exhibit 1.3 and being the discovery served on the primary plaintiff, Mariner Health Care, Inc. Id at 98. Each discovery request was accompanied by a discovery letter, a copy of which is attached hereto and incorporated herein as Exhibit 1.4. Id at 19. Each respective cover letter to each Plaintiff concluded with the following request: REQUESTS TO MEET AND CONFER PRIOR TO ANY DISCOVERY MOTIONS In the event that you object to any of the discovery or intend to a seek a protective order, jt is my request, pursuant to the applicable civil and local rules of the court, that we engage in a pre-motion meeting and/or conference in order to attempt to avoid unnecessary motions practice with respect to your objection or seeking of protection with regard to the discovery order. I have often found that counsel are able to amicably agree with regard to limiting the scope of discovery or some other accommodation in order to avoid unnecessary motions practice. I respectfully request that you contact me concerning any arrangements for conferences regarding discovery issues before any motion is filed. Id at {10. ? BQ literally served a separate Request for Production of Documents on each of the 32 Plaintiffs. The areas of production (18) in total were the same to each. To avoid unnecessary use of the Court’s filing space, albeit electronic, only one of the Requests for Production of Documents has been attached, as an example. If the Court or Plaintiffs so desire, the remaining thirty-one (31) other Requests for Production of Documents and their respective cover letters can be filed in the record. -3-0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - L1é Upon request of Plaintiffs’ counsel, BQ granted an extension to respond to its discovery requests. Id. at {/]11-14. When the extended time expired for the responses, BQ received objections to every single discovery request for each of the thirty-two (32) Plaintiffs and did not receive a single piece of paper or electronic document. A copy of an example of the objections is attached hereto and incorporated herein as Exhibit 1.5.3 Id. at 116. Because the parties were not able to move discovery forward, BQ requested a discovery conference with the Court, a copy of which is attached hereto and incorporated herein as Exhibit 1.6. Id. at 917. The Court ordered the parties to a status conference that was held with the Court on May 20, 2013, and the Court generously provided the parties nearly an hour and a half of its time. Id at 118. Despite all the efforts set forth in Exhibit to date, (Id. at 192 Exhibits 1.7 through 1.11 ) some five (5) months after the Requests were served, not : of paper has been produced yet, as compared to the equivalent of the seven (7) boxes produced by the Defendants some two (2) years ago. Id. at 1929-32 IL. LAW & ARGUMENT A, Plaintiffs have refused to provide any documentation or responses and should be compelled to respond pursuant to Civ. R. 37. Rule 37, Ohio Rules of Civil Procedure, provides in relevant part as follows: (A) Motion for order compelling discovery Upon reasonable notice to other parties and all persons affected thereby, a party may move for an order compelling discovery as follows: () Appropriate court. A motion for an order to a party or a deponent shall be made to the court in which the action is pending. (2) Motion. If... a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection > Only one of the responses attached hereto as an example, because there are thirty-two of them. To avoid unnecessary use of filing space, albeit electronic, only one of the Plaintiffs’ written responses to the 32 Requests for Production of Documents has been attached as an example. If the Court or Plaintiffs so desire the remaining 31 other written responses to the 32 Requests for Production of Documents and their respective cover letter can be filed in the record.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0c172 - L17 18 OB 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. (4) Award of expenses of motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent who the party or attori dvisin both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. (emphasis added) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. ... (B) Failure to comply with order. (2) If any party ... fails to ... provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (a) An order that ... or any other designated facts shall be taken to be established for urposes of the action in dance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designate ims or def , or prohibiting him from introducing designated matters in evidence; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (@) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party ... fails . . . (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion and notice may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of 5:0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - L118 subdivision (B)(2) of this rule. In lieu of any order or in addition theret rt_shall require the party failing t r_the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court expre ssly finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(C). (E) Before filing a motion authorized by this rule, the party shall make a reasonable effort to resolve the matter through discussion with the attorney, unrepresented party, or person from whom discovery is sought. The motion shall be accompanied by a statement reciting the efforts made to resolve the matter in accordance with this section. (emphasis supplied). Here, as more fully set forth above, Counterclaimant properly served Plaintiffs with discovery requesting documents critical to its claims and that address the very core of this action. Although Defendants and Counterclaimant responded to Plaintiff's discovery, each Plaintiff's responses the respective discovery served upon it by the Counterclaimant is plainly insufficient and out of rule in that each Plaintiff has failed to provide any documents, or any privilege logs. B. Counterclaimant has been denied any document production and denied even privilege logs regarding each Plaintiff's respective refusal to produce any documents. The Civil Rules provide that a party 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.” Civ. R. 26(B)(1). “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.” Jd. Further, Civ. R. 26(B)(6) governs the procedure parties must follow when withholding information and/or documents on the basis of privilege, and provides, in relevant part as follows:0C172 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 - L19 (a) Information withheld. When information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. (emphasis supplied). In McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441, 2001-Ohio-1517, 766 N.E.2d 1015 (9th Dist.), the court of appeals addressed the effect of a party's failure to comply with the above requirement in Civ. R. 26(B)(6) that a privilege log be provided along with any claim of privilege in discovery responses. Id. at (78-9. In that case, the party claiming that certain requested documents were privileged, and thus, exempt from disclosure, withheld such documents without providing a privilege log. Id. at $3, 10. The discovering party then sought to compel the production of withheld documents, and the trial court granted such request. On appeal, the district court rejected appellant Goodyear Tire’s argument that the trial court erred in ordering production of documents and that materials it claimed were exempt from disclosure due to privilege. Id. at $11. In rejecting this argument, the court noted that it was only after the appellee’s motion to compel was filed that appellant Goodyear “elaborated upon the privileged nature of these documents and material and provided corroboration.” Id. However, the court held that such untimely elaboration and corroboration were of no effect as the “appellant had already waived these privileges by failing to list initially the privileged documents and material and by failing to provide supporting evidence in its motion for protective order.” Jd. (emphasis supplied). As such, the court went on to hold that because the appellant had not properly asserted privilege, “appellant cannot now provide evidence to support its contention that the documents and material are privileged, even if these items would have been considered privileged if asserted timely.” Id. citing Peat, Marwick, Mitchell & Co. v. W., 748 F.2d 540, 542 (10th Cir. 1984) (holding “[e]ven though it does not seem seriously disputed that the privilege would have -7-0C172 naganntin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 attached if the objection had been timely and adequately asserted, that such a showing had not been made when the trial court was called upon to make its ruling defeats the privilege.”). The same issue was addressed by the Seventh District Court of Appeals in Hartzell v. Breneman, 7th Dist. No. 10MA-67, 2011-Ohio-2472, 2011 WL 2112548. The Hartzell court discussed the procedure for withholding information and documentation on claim of privilege and held that “[w]hen information subject to discovery is withheld on a claim that it is privileged, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. Civ.R. 26(B)(6)(a). This rule essentially requires the construction of a privilege log.” Id. at §19 (emphasis supplied). The court went to discuss this requirement and stated as follows: “the burden is on the party claiming privilege so that an in-camera hearing is unnecessary if that party fails to show a factual basis for believing in good faith that the records are not properly discoverable. .. Moreover, a claim of privilege can be waived where no privilege log is submitted. McPherson v. Goodyear Tire & Rubber Co., 9th Dist. No. 20579, 2001—Ohio— 1517, J 11, 146 Ohio App.3d 441, 766 N.E.2d 1015, citing Peat, Marwick, Mitchell & Co. v. West (C.A.10, 1984), 748 F.2d 540, 542. See, also, Huntington Nail. Bank v. Dixon, 8th Dist. No. 93604, 2010-Ohio—4668, {| 22-25 (stating that the trial court had discretion to determine waiver on a case-by-case basis, implying that the refusal to allow a late privilege log would not be disturbed). Civ.R. 26(B)(6)(a) specifies that when information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. As the rule does not provide an exception to the privilege log requirement, appellants should have collected their own medical records, constructed a privilege log for records it deemed not causally or historically related to the action, and provided the other records and the privilege log to Allstate, at which point Allstate could have determined whether a motion to compel was necessary, or to the trial court for an in-camera inspection. Appellants failed to follow the proper procedure under the Civil Rules and thus were not entitled to an in-camera review. It was their burden to show that the records were not causally or historically related. See Patterson, 7th Dist. No. O3BE1 at { 19. See, also, Waldmann,_48 Ohio St.2d at 178, 358 N.E.2d 521, -8-0C172 ia fanktin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 Without a privilege log and a provision of the records to the trial court, this burden could not be met, allowing the trial court to compel production of the records.” Id. at 1923-26 (emphasis supplied). Accordingly, appellate courts have ruled that the appellant’s failure to follow the proper procedure as provided by Civ. R. 26(B)(6) by providing unprivileged documents and by preparing and filing a privilege log as to the records claimed to be exempt from disclosure, that lower courts are correct in ruling that the appellants had waived their claim of privilege as to the documents at issue. In the instant case, there is no dispute that each Plaintiff has objected to essentially every discovery request from Counterclaimant, and ninety (90) days of attempted dispute resolution has produced no production. There likewise can be no dispute that each Plaintiff has wholly failed to provide any privilege log in so objecting as required by Civ. R. 26(B)(6) which would allow the Plaintiffs to contest their repeated objection of privilege to every document requested from them. Thus, Plaintiff requests that this Court rule the Defendants have waived any privilege that may have existed with regard to the requested documents and order all requested documents produced. See Hartzell, supra. IL. CONCLUSION For all of the foregoing reasons, this Court is respectfully requested to enter an order requiring Plaintiffs to produce all documents requested from them. Counterclaimant BQ contends that this Court should enter an order (a) pursuant to Civ. R. 37(A)(4) and (D) awarding the expenses, including attorneys’ fees, incurred in or attorney time expended in the preparation of this filing and complying with Civ. R. 37(E) and Loc. R. 47.01 as outlined in Exhibit 1 and the Exhibits thereto 1.1 through 1.11, and (b) for sanctions pursuant to Civ. R. 37(D) and B(2)(a) or (b) or (c), including but not limited to disallowing any response to Counterclaimant’s motion for summary judgment, striking their answer to the Counterclaim and deeming them in default for -9-Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L22 0: the same, or dismissal of Plaintiffs’ complaint herein or granting of the Counterclaimant’s and Defendants’ pending motion for Summary Judgment for their unwarranted, egregious and sanctionable abuse of the discovery process. Respectfully submitted, Ls/ JenniferL. Brunner Jennifer L. Brunner (0012998) Email: tlb@brunnerlaw.com Peter A. Contreras (0087530) Email pac@brunnerlaw.com BRUNNER QUINN 35 North Fourth Street, Suite 200 Columbus, Ohio 43215 Telephone: (614) 241-5550 Facsimile: (614) 241-5551 Attorneys for Counterclaimant The Brunner Firm Co L.P. A. d.b.a. Brunner Quinn CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served by ECF filing the same this 24* day of July 2013 upon the following: Scott Stewart Michael I. Bernstein, PA The Baker Building THE BERNSTEIN LAW FIRM 1940 East Sixth Street, Suite 900 1688 Meridian Avenue, Suite 418 Miami Beach, FL 33139 Facsimile: (305) 781-4512 michael @bernstein-lawfirm.com brian@bernstein-lawfirm.com Alan Petrov Jamie Price Gallagher Sharp 6% Floor, Buckley Building 1501 Euclid Avenue Cleveland, OH 44115 és/ Jennifer L, Brunner Apetrov@gallaghers ni Jennifer L. Brunner (0024440) iprice @gallaghersharp.. com Email: Ib@brunm: y Peter A. Contreras (0087530) Email pac@brunnerlaw.com -10-Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L23 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Mariner Health Care, Inc., et al., ) CASE NO. 12CV014618 ) JUDGE PATRICK E. SHEERAN Plaintiffs, ) ) vs. ) ) Richard [sic] L. Brunner, et al., ) ) Defendants. ) COUNTERCLAIMANT THE BRUNNER FIRM CO. L.P.A’S MOTION TO COMPEL PLAINTIFF CLEVELAND DYNAMIC OPERATING COMPANY, LLC TO APPEAR FOR DEPOSITION AND FOR SANCTIONS Counterclaimant The Brunner Firm Co. L.P.A. db.a. Brunner Quinn (hereinafter referred to “BFC LPA”), by and through the undersigned counsel, hereby respectfully moves this Court pursuant to Civ. R 37(D), for an order compelling Plaintiff Cleveland Dynamic Operating Company, LLC (“Plaintiff Cleveland”) to appear for its deposition for the reason that said Plaintiff, after multiple months of scheduling attempts, failed to appear at its agreed upon and noticed deposition and now refuses to give an alternative date for its deposition in Columbus, Ohio. Further, Counterclaimant BFC LPA moves this Court pursuant to Civ. R. 37(D) for an award of sanctions against Plaintiff Cleveland, including fees and costs associated with preparing and filing this Motion and in scheduling the noticed deposition at which Plaintiff Cleveland failed to appear. The grounds for all of the above are set forth more fully in the Memorandum in Support below. EXHIBIT | C tabbles*Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L24 Respectfully submitted, /s/ Jennifer L. Brunner Jennifer L. Brunner (0024440) Email: jlb@brunnerlaw.com Peter A. Contreras (0087530) Email pac@brunnerlaw.com BRUNNER QUINN 35 North Fourth Street, Suite 200 Columbus, Ohio 43215 Telephone: (614) 241-5550 Facsimile: (614) 241-5551 Attorneys for Counterclaimant The Brunner Firm Co LP. A. d.b.a. Brunner Quinn MEMORANDUM IN SUPPORT I. FACTS This Court is aware by virtue of the status conference held on May 20, 2013, and as requested in Exhibit 2!, of BFC LPA’s attempts to schedule a deposition of the first of the eighteen (18) Plaintiffs, Plaintiff Cleveland. See Certificate of Counsel attached hereto as Exhibit 1 and correspondence between counsel demonstrating BFC LPA’s attempts to schedule Plaintiff Cleveland’s deposition attached hereto as Exhibits 2-18. On July 8, 2013, counsel participated in a conference call regarding the deposition scheduling, and thereafter BFC LPA issued the Notice of Deposition of Plaintiff Cleveland to be conducted on August 12, 2013 as agreed upon by counsel. See Exhibit 7. ' Exhibit 1 to this Motion is the certification of counsel pursuant to Civ. R. 37(E) reciting the reasonable efforts of BFC LPA to resolve this discovery dispute prior to filing the instant Motion. 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L25 On August 8, 2013, Plaintiffs advised BFC LPA that August 12, 2013, might not be a convenient date and advised that Plaintiff Cleveland would not attend the deposition noticed for that date. See email correspondence chain between counsel attached as Exhibit 10. Thereafter, BFC LPA sent the letter attached hereto as Exhibit 11 in which the final paragraph asked for alternative dates. See Exhibit 11. Instead of providing alternative dates for Plaintiff Cleveland’s deposition, the Plaintiffs sent the letter dated August 15, 2013? indicating that BFC LPA would be limited to three (8) depositions for the eighteen (18) Plaintiffs, and that the depositions would have to be taken in Atlanta, Miami and somewhere in the country of Israel. See Exhibit 12 attached hereto. BFC LPA responded with Exhibit 13. Il. LAW & ARGUMENT A. Plaintiff Cleveland failed to appear at its deposition and now refuses to give an alternate date for deposition in Franklin County and which it is not being simultaneously deposed with eight (8) other Plaintiffs. Civil Rule 37, Ohio Rules of Civil Procedure, provides in relevant part as follows: (B) Failure to comply with order. (2) If any party ... fails to ...provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: or of i shall be taken (a) An order that ? Attached hereto as Exhibit 12.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L26 (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (c) An order striking out pleadings or parts thereof, or staying further Proveedings until the order j is obeyed ¢ or * dismissing the judgment by default ¢ tho disobedient (D) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or a managing agent of a party or a person designated under Rule 30(B)(5) or Rule 31(A) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice,..., the court in which the action is pending on motion and notice may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of subdivision (B)(2) of this rule. In lieu of any order or in addition thereto, the court shall require pay the reasonable exp enses, including attorn ’ ey's fees, caused by the failure, unless the court expressly finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(C). (E) Before filing a motion authorized by this rule, the party shall make a reasonable effort to resolve the matter through discussion with the attorney, unrepresented party, or person from whom discovery is sought. The motion shall be accompanied by a statement reciting the efforts made to resolve the matter in accordance with this section. (emphasis supplied). In these circumstances, Plaintiff Cleveland is refusing to appear in this forum and argues through its attorney in Exhibit 12 that BFC LPA must depose itsFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618. 0C172 - L27 representative in Miami. Plaintiff Cleveland is not permitted to require depositions to take place in Miami, Florida. First, no areas of inquiry have been stated pursuant to Civ. R 30(B)) for any Plaintiff other than Plaintiff Cleveland. More importantly, Civ. R. 26(D) provides in its relevant part as follows: “(D) Sequence and timing of discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.” Mr. Bernstein, as counsel for the Plaintiffs, is attempting to control the sequence and timing of BFC LPA’s discovery, even claiming in Exhibit 12 that BFC LPA is not entitled to discovery until after the Court rules on BFC LPA’s Motion for Leave to Amend Counterclaim.? See Exhibit 12 at page 2 in last 2 sentences of the next to the last paragraph. B: BFC LPA has been denied depositions in the same manner that it has been denied document production for approximately the last eight (8) months. This Court already has before it BFC LPA’s motion to compel production of documents which demonstrates that while all Defendants, including the BFC LPA, have produced in discovery over seven (7) boxes of information to the Plaintiffs, the Plaintiffs, through their counsel Mr. Bernstein, have continued to refuse to produce documents since the beginning of the year. As demonstrated in the Certificate of Counsel attached hereto as Exhibit1, and as documented by Exhibits 2 through 183, BFC LPA cannot conduct one simple deposition of one of the eighteen (18) Plaintiffs > Counsel for Plaintiff repeatedly and inaccurately refers to motions filed by Counterclaimant BFC LPA as “Defendant” BFC LPA and again makes such misstatement in Exhibit 12. 5Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L28 0: 18 without a continual frustration of the process by Mr. Bernstein, as pro hac vice counsel to the Plaintiffs. The latest being the attempt in Exhibit 12 @ to limit BFC LPA to three (3) mass depositions; (i) to designate who will be deposed without knowing the Civ. R. 30(B)G) areas of inquiry; (iii) to require the depositions to take place in Atlanta, Miami and an unknown place in the country of Israel; and Gv) to withhold depositions until the Court rules upon a pending motion to amend. One possible sanction the court might consider pursuant to Civ. R. 27(B) is revoking Mr. Bernstein’s pro hae vice privileges and requiring Plaintiffs to obtain or use their existing Ohio counsel. Il. CONCLUSION For all of the foregoing reasons, this Court should enter an order requiring Plaintiff Cleveland Dynamic Operating Company, LLC to appear for its deposition and award sanctions against Plaintiff Cleveland, including fees and costs associated with preparing and filing this Motion and in scheduling the noticed deposition at which Plaintiff Cleveland failed to appear. Respectfully submitted, /s/ Jennifer L. Brunner Jennifer L, Brunner (0024440) Email: jlb@brunnerlaw.com Peter A. Contreras (0087530) Email pac@brunnerlaw.com BRUNNER QUINN 35 North Fourth Street, Suite 200 Columbus, Ohio 43215Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L29 Telephone: (614) 241-5550 Facsimile: (614) 241-5551 Attorneys for Counterclaimant The Brunner Firm Co L.P. A. d.b.a. Brunner Quinn CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served by ECF filing the same this 22nd day of August 2013 upon the following: Scott Stewart The Baker Building 1940 East Sixth Street, Suite 900 Cleveland, OH 44114-2223 SStewart@stewartdechant.com Michael I. Bernstein, PA THE BERNSTEIN LAW FIRM 1688 Meridian Avenue, Suite 418 Miami Beach, FL 33139 Facsimile: (805) 781-4512 michael@bernstein-lawfirm.com brian@bemstein-lawfirm.com Alan Petrov Jamie Price Gallagher Sharp 6th Floor, Buckley Building 1501 Euclid Avenue Cleveland, OH 44115 APetrov@gallaghersharp.com jprice@gallaghersharp.com /s/ Jennifer L. Brunner Jennifer L. Brunner (0024440) Email: jlb@brunnerlaw.com Peter A. Contreras (0087530) Email pac@brunnerlaw.com 7Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 17 4:16 PM-12CV014618 0C172 - L30 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO MARINER HEALTH CARE, INC. etal, ) CASE NO: 12CV014618 ) Plaintiffs, ) JUDGE PATRICK E, SHEERAN ) v. ) ) DEFENDANTS’ MOTION TO RICHARD L. BRUNNER, et al., ) COMPEL DEPOSITION AND MOTION ) FOR PROTECTIVE ORDER Defendants, ) Pursuant to Civ.R. 26 and 37, Defendants Rick L. Brunner, Patrick M. Quinn, Steven M. Brown, The Brunner Firm Co., L.P.A., and The Brunner Firm Co., L.P.A. dba Brunner Quinn (collectively “Defendants”), by and through the undersigned counsel, hereby move this Court for an order compelling Avi Klein, the manager and corporate designee of nine of the Plaintiffs, to appear for his previously scheduled and agreed-upon deposition. Despite agreeing to submit