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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843
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IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CRAIG S. JONES, et al.,
Case No. 11CV-8955
Plaintiffs,
Judge Lynch
-vs-
RED MORTGAGE CAPITAL, LLC, et al.,
Defendants.
RED MORTGAGE CAPITAL, LLC, et al.,
Case No. 12CV-2843
Plaintiffs,
Judge Lynch
-vs-
STEVEN R. RUSSI,
Defendant.
RED DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF
MOTION TO COMPEL DEPOSITIONS OF PLAINTIFFS
I. Plaintiffs Should Abide Their Prior Agreement To Bifurcate Discovery
Significantly, Plaintiffs don’t deny that they agreed with RED that (i) during the initial
bifurcated stage of this case, RED would depose Plaintiffs with respect to the three threshold
Bifurcated Issues, and (ii) RED would be able to depose Plaintiffs a second time on the
remaining issues if the case advanced beyond the bifurcated stage.
Plaintiffs can’t have it both ways. Having induced RED to limit the scope of their earlier
depositions during the bifurcated stage, Plaintiffs should not be heard to complain about being
deposed on the remaining non-bifurcated issues that are now before the Court. It would be
highly prejudicial to preclude RED from deposing Plaintiffs on the remaining issues since itFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843
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deferred those questions in reliance on Plaintiffs’ agreement and the Court’s earlier Bifurcation
Entry. Plaintiffs don’t dispute any of this.
Il. Plaintiffs Don’t Deny That They Have Not Yet Been Deposed On The Remaining
Non-Bifurcated Issues
Plaintiffs’ view that it is “not necessary” for RED to depose them on the remaining non-
bifurcated issues is akin to having a fox guard the henhouse. Plaintiffs, of course, have every
incentive to say this because they don’t want to be deposed. But it is, in fact, necessary for RED
to depose Plaintiffs.
Plaintiffs don’t deny that, in accordance with the parties’ prior agreement for bifurcated
discovery, RED has not yet deposed them about their alleged damages, the equities relating to
their remaining equitable claims, and RED’s affirmative defenses. Plaintiffs state that they are
“merely seeking their equitable share of the deferred incentive compensation based on, inter alia,
principles of equity and historic practices.” [Plaintiffs’ 11/7/14 Reply, pg. 2] But RED has not
yet had the opportunity to depose Plaintiffs about what they contend is their “equitable share”
and the factual basis for the recovery each of them seeks. Again, Plaintiffs don’t deny this.
Plaintiffs’ assertion that RED has already deposed Plaintiff Steven Russi in the federal
lawsuit relating to his legal malpractice and disloyalty misses the point made in RED’s motion to
compel in two respects. First, RED seeks to depose Mr. Russi about the other remaining issues
in this case. Second, RED has not yet deposed the other Plaintiffs concerning Mr. Russi’s
improper, clandestine collusion with them to sue his own client and his improper provision of
legal advice and client information to the other Plaintiffs to use against RED. Plaintiffs also do
not dispute that RED has not deposed any of them relating to RED’s other affirmative defenses.
Plaintiffs’ last argument that RED’s notices to depose them were “not timely” is
scurrilous. Plaintiffs don’t deny that they were available for deposition during the last two weeksFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843
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of October 2014. And, they again fail to cite a single authority in support of their position that a
party’s deposition can’t be requested three weeks before the discovery cutoff.
THI. Conclusion
For all of these reasons, Plaintiffs should be ordered to appear for their depositions on the
remaining, non-bifurcated issues that are now before the Court. Alternatively, as a sanction
under Civ.R. 37(D) and 37(B)(2)(b) for Plaintiffs’ refusal to appear for their properly noticed
depositions before the discovery cutoff, RED requests the Court to enter an order prohibiting
Plaintiffs from introducing evidence concerning the damages or other relief they seek in this
case. Such a sanction is expressly permitted by Civ. R. 37(D) and 37(B)(2)(b) for their refusal to
appear for their properly noticed depositions, and is proportional to Plaintiffs’ discovery
disobedience for refusing to provide Defendants with any damages discovery on their equitable
claims.
Respectfully submitted,
/s/ Stuart G. Parsell
Steven W. Tigges (0019288)
John W. Zeiger (0010707)
Stuart G. Parsell (0063510)
ZEIGER, TIGGES & LITTLE LLP
41 South High Street, Suite 3500
Columbus, Ohio 43215
Telephone (614) 365-9900
Facsimile (614) 365-7900
tigges @litohio.com
zeiger @litohio.com
parsell @litohio.com
Attorneys for RED Mortgage Capital, LLC,
RED Capital Markets, LLC, RED Capital Advisors,
LLC, and RED Capital Partners, LLCFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 20" day of November, 2014, a true copy of
the foregoing was filed electronically with the Franklin County Clerk of Courts using the e-
Filing System, which will send a Notice of Electronic Filing to the counsel listed below:
Joseph F. Murray Todd S. Swatsler
Brian K. Murphy J. Todd Kennard
Robert H. Miller JONES DAY
MURRAY MURPHY MOUL + 325 John H. McConnell Boulevard,
BASIL LLP Suite 600
1114 Dublin Road Columbus, Ohio 43215
Columbus, Ohio 43215
Attorneys for Defendant PNC
Attorneys for Plaintiffs Financial Services Group
/s/ Stuart G. Parsell
Stuart G. Parsell (0063510)
950-001:520769
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843 0C179 - H43 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO CRAIG S. JONES, et al., Case No. 11CV-8955 Plaintiffs, Judge Lynch -vs- RED MORTGAGE CAPITAL, LLC, et al., Defendants. RED MORTGAGE CAPITAL, LLC, et al., Case No. 12CV-2843 Plaintiffs, Judge Lynch -vs- STEVEN R. RUSSI, Defendant. RED DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DEPOSITIONS OF PLAINTIFFS I. Plaintiffs Should Abide Their Prior Agreement To Bifurcate Discovery Significantly, Plaintiffs don’t deny that they agreed with RED that (i) during the initial bifurcated stage of this case, RED would depose Plaintiffs with respect to the three threshold Bifurcated Issues, and (ii) RED would be able to depose Plaintiffs a second time on the remaining issues if the case advanced beyond the bifurcated stage. Plaintiffs can’t have it both ways. Having induced RED to limit the scope of their earlier depositions during the bifurcated stage, Plaintiffs should not be heard to complain about being deposed on the remaining non-bifurcated issues that are now before the Court. It would be highly prejudicial to preclude RED from deposing Plaintiffs on the remaining issues since itFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843 0C179 - H44 deferred those questions in reliance on Plaintiffs’ agreement and the Court’s earlier Bifurcation Entry. Plaintiffs don’t dispute any of this. Il. Plaintiffs Don’t Deny That They Have Not Yet Been Deposed On The Remaining Non-Bifurcated Issues Plaintiffs’ view that it is “not necessary” for RED to depose them on the remaining non- bifurcated issues is akin to having a fox guard the henhouse. Plaintiffs, of course, have every incentive to say this because they don’t want to be deposed. But it is, in fact, necessary for RED to depose Plaintiffs. Plaintiffs don’t deny that, in accordance with the parties’ prior agreement for bifurcated discovery, RED has not yet deposed them about their alleged damages, the equities relating to their remaining equitable claims, and RED’s affirmative defenses. Plaintiffs state that they are “merely seeking their equitable share of the deferred incentive compensation based on, inter alia, principles of equity and historic practices.” [Plaintiffs’ 11/7/14 Reply, pg. 2] But RED has not yet had the opportunity to depose Plaintiffs about what they contend is their “equitable share” and the factual basis for the recovery each of them seeks. Again, Plaintiffs don’t deny this. Plaintiffs’ assertion that RED has already deposed Plaintiff Steven Russi in the federal lawsuit relating to his legal malpractice and disloyalty misses the point made in RED’s motion to compel in two respects. First, RED seeks to depose Mr. Russi about the other remaining issues in this case. Second, RED has not yet deposed the other Plaintiffs concerning Mr. Russi’s improper, clandestine collusion with them to sue his own client and his improper provision of legal advice and client information to the other Plaintiffs to use against RED. Plaintiffs also do not dispute that RED has not deposed any of them relating to RED’s other affirmative defenses. Plaintiffs’ last argument that RED’s notices to depose them were “not timely” is scurrilous. Plaintiffs don’t deny that they were available for deposition during the last two weeksFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843 0C179 - H45 of October 2014. And, they again fail to cite a single authority in support of their position that a party’s deposition can’t be requested three weeks before the discovery cutoff. THI. Conclusion For all of these reasons, Plaintiffs should be ordered to appear for their depositions on the remaining, non-bifurcated issues that are now before the Court. Alternatively, as a sanction under Civ.R. 37(D) and 37(B)(2)(b) for Plaintiffs’ refusal to appear for their properly noticed depositions before the discovery cutoff, RED requests the Court to enter an order prohibiting Plaintiffs from introducing evidence concerning the damages or other relief they seek in this case. Such a sanction is expressly permitted by Civ. R. 37(D) and 37(B)(2)(b) for their refusal to appear for their properly noticed depositions, and is proportional to Plaintiffs’ discovery disobedience for refusing to provide Defendants with any damages discovery on their equitable claims. Respectfully submitted, /s/ Stuart G. Parsell Steven W. Tigges (0019288) John W. Zeiger (0010707) Stuart G. Parsell (0063510) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio 43215 Telephone (614) 365-9900 Facsimile (614) 365-7900 tigges @litohio.com zeiger @litohio.com parsell @litohio.com Attorneys for RED Mortgage Capital, LLC, RED Capital Markets, LLC, RED Capital Advisors, LLC, and RED Capital Partners, LLCFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 20 5:16 PM-12CV002843 0C179 - H46 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 20" day of November, 2014, a true copy of the foregoing was filed electronically with the Franklin County Clerk of Courts using the e- Filing System, which will send a Notice of Electronic Filing to the counsel listed below: Joseph F. Murray Todd S. Swatsler Brian K. Murphy J. Todd Kennard Robert H. Miller JONES DAY MURRAY MURPHY MOUL + 325 John H. McConnell Boulevard, BASIL LLP Suite 600 1114 Dublin Road Columbus, Ohio 43215 Columbus, Ohio 43215 Attorneys for Defendant PNC Attorneys for Plaintiffs Financial Services Group /s/ Stuart G. Parsell Stuart G. Parsell (0063510) 950-001:520769