United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
67, 68, 78, 85 AND 94]
Y. PEARSON, JUDGE
Mazanec, Raskin and Ryder Co., L.P.A. filed a Motion for
Order Requiring Payment of Costs. ECF No. 78. On
September 16, 2016, Magistrate Judge Thomas Parker issued a
report recommending that the Court grant the motion in part,
and award $14, 174.31 as reasonable compensation for
Mazanec's compliance with the subpoena issued by
Defendant RLI Insurance Company (“RLI”). ECF
No. 88 (Report and Recommendation). RLI objected.
ECF No. 94. The Court has reviewed the above filings,
the relevant portions of the record, and the governing law
and renders the ruling below.
de novo review, the following detailed recitation of
the protracted manner in which this discovery dispute
unfolded may be informative.
issued a Subpoena to Produce Documents, Information, or
Objects in a Civil Action (the “Subpoena”)
(ECF No. 40-2) to Non-Party Mazanec compelling the
production of: “Complete attorney file,
including all pleadings, discovery, correspondence, emails
and other communications, and all work product including
notes, memos, reports, etc. in defending the City of
Barberton and employees in Clarence Elkins, et al. v.
Summit County, OH, et al., ND Ohio Case No.
06-cv-03004.” ECF No. 40; ECF No. 40-2 at
PageID #: 811 (emphasis added). Mazanec objected to the
Subpoena pursuant to Rule 45(d)(2)(B) on three
grounds relevant to this writing. ECF No. 97-1.
Mazanec objected on grounds that: (1) the Subpoena was over
broad; (2) compliance would subject Mazanec to undue burden
and expense; and (3) compliance would require disclosure of
materials protected by attorney-client privilege or the work
product doctrine. Id. at PageID #: 3876. For these
and other reasons, Mazanec declined to produce any materials
in response to the Subpoena. Id. at PageID #: 3877.
Mazanec also filed a Motion to Quash Subpoena pursuant to
Rule 45(d)(3)(A) asking the Court to “quash
the Subpoena in its entirety” and to “impose an
appropriate sanction against RLI and its counsel pursuant to
Rule 45(d)(1)” for undue burden and expense.
ECF No. 41 at PageID #: 814; ECF No. 41-1 at
PageID #: 816, 820. Mazanec's motion also stated
that it was filing the motion to quash in order to
“further preserve [its] objections.” ECF No.
41-1 at PageID #: 818. The matter was referred to
Magistrate Judge Thomas M. Parker, pursuant to 28 U.S.C.
§ 636 and Local Rules 72.1 and
72.2(a), for resolution of the motion to
quash. ECF No. 52.
2, 2016, the magistrate judge issued an Order (the
“June Order”) (ECF No. 63) stating that,
pursuant to Rule 45(d), the Court:
is likely to order the non-part[y] to produce the
non-privileged materials which RLI has subpoenaed. However,
to avoid placing an undue burden on [Mazanec, ] the court
intends to require RLI to bear the reasonable costs of the
non-part[y's] production of the subpoenaed materials.
ECF No. 63 at PageID #: 1661. Pursuant to Rule
45(d)(2)(B)(ii), the magistrate judge found the costs
incurred by a non-party for compliance with an order
compelling production is reimbursable. ECF No. 63 at Page
ID #: 1661-62. The magistrate judge concluded that
“the protections of the work product doctrine are
inapplicable here because the subpoenaed materials were not
prepared in preparation for this litigation.” Id.
at PageID #: 1660. In addition, the magistrate judge
found that Mazanec had “not provided enough information
to the court for it to fully consider and determine whether
the [Subpoena would] require the disclosure of privileged
materials and/or whether [the Subpoena would] subject the
non-part[y] to an undue burden.” Id. at PageID #:
1661. Therefore, the magistrate judge ordered Mazanec to
“prepare and file with the [C]ourt cost estimates for
reviewing the subpoenaed records, preparing privilege logs,
and producing the non-privileged documents subpoenaed by [RLI
with] sufficient detail to permit RLI to determine whether it
will modify its subpoenas so as to avoid certain
costs.” Id. at PageID #: 1662.
complied with the June Order by filing a cost estimate
(ECF No. 66) indicating: (1) a total estimated cost
for digital and physical document review and preparation of
logs in the amount of $115, 060.00; (2) an estimated costs of
preparation and review for document production by a vendor in
an amount ranging from $2, 600.00 to $5, 200.00, excluding
vendor costs for actual document production; and (3) an
estimated cost of $3, 690.00 for attorney time preparing the
cost estimate. ECF No. 66 at PageID #: 1674.
Because the Court was “not notified of any agreement
between the parties and/or any proposed modification of the
subpoena issued by [RLI]” after Mazanec's cost
estimate had been filed, on July 19, 2016, the magistrate
judge issued an Order (the “July Order”) (ECF
No. 69) requiring RLI to file:
1) notice as to whether it will seek enforcement of the
subpoena issued on [Non-Party Mazanec];
2) notice as to whether it is willing to reimburse [Mazanec]
for the estimated costs of complying with the subpoena; and
3) in response to the cost estimate filed by [Mazanec], a
legal brief stating any and all factual and legal arguments
in response to Mazanec's argument that complying with the
[RLI] subpoena would create an undue burden, pursuant to Fed.
R. Civ. P[.] 45(A).
ECF No. 69 at PageID #: 1690-91.
parties engaged in some email communication over the
following weeks in an attempt to resolve the discovery
dispute. See ECF No. 71-1. During the attempt, RLI
presented Mazanec with a pared down list of requested
materials for production. ECF No. 71-1 at PageID
#: 1705-06. By the pared down list, RLI requested:
1) The Defendants' initial disclosures;
2) The Defendants' answers to Elkins' interrogatories
and requests for admission . . .;
3) The documents produced in response to the IRS subpoena in
the Elkins bankruptcy, not including medical records;
4) Your office's correspondence with Elkins' counsel,
and with any third parties including potential witnesses;
5)Your notes and internal memos, other than attorney-client
communication, regarding witnesses, evidence, trial strategy,
and insurance coverage.
Id. RLI noted in its July 25, 2016 email
communicating the pared down list to Mazanec that:
“[t]he first three items should be readily available
and not require significant review, especially since item 3
was already pre-reviewed, and a privilege [log]
prepared.” Id. at PagedID #: 1706. RLI also
requested a cost estimate for the review and production of
items 4 and 5. Id. In response, Mazanec concurred
that “not too much review time would be required for
the first 3 categories.” Id. at PageID #:
1703. Mazanec also provided some rough estimates of time
and requested clarification as to items 4 and 5. Id. at
PageID #: 1703-05. The email colloquy concluded with
RLI's request that Mazanec produce the first 3 items
without further delay. Id. at PageID #: 1701.
Unfortunately, the parties were unsuccessful in reaching an
agreement as to items 4 and 5. Mazanec declined to provide
further cost estimates and to produce any documents on
grounds that it maintained its original objections to the
Subpoena (ECF No. 97-1) and the cost estimate filed
with the Court (ECF No. 66), and would await a
ruling from the magistrate judge on its pending motion to
RLI did not move the court for an order compelling production
pursuant to Rule 45(d)(2)(B)(i). Instead, RLI
complied with the July Order by filing a Notice of Intent to
Enforce Subpoenas and Response to Claims of Undue Burden
(“Notice”) (ECF No. 71) requesting that
the Court “enforce the subpoenas in their
entirety.” ECF No. 71 at PageID #: 1695. RLI
also requested that the Court clarify its ruling as to the
waiver of attorney-client privilege. In addition, should the
Court find attorney-client privilege not waived, RLI
requested that the Court enforce the subpoena “with
respect to documents not protected by attorney-client
privilege and which are not burdensome to produce.”
Id. at PageID #: 1697. As to the documents not
protected by attorney-client privilege, RLI submitted to the
Court that it “seeks only the following
1. Elkins and Barberton's initial disclosures;
2. Barberton's answers to written discovery and document
3. Documents produced in response to the IRS subpoena (except
4. [Mazanec's] emails and correspondence with opposing
counsel and other ...