Selective Insurance Company of the Southeast v. RLI Insurance Company
Memorandum of Opinion and Order For the reasons set forth herein, the Court adopts the Magistrate Judge's Report and Recommendation (ECF No. 88 ), and grants Mazanec's motion for an award of costs (ECF No. 78 ), in part. It is hereby ordered that RLI pay Non-Party Mazanec, Raskin and Ryder Co. L.P.A. $14,174.32 for the costs of complying with the Modified Subpoena. Judge Benita Y. Pearson on 3/31/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
SELECTIVE INSURANCE COMPANY OF
RLI INSURANCE COMPANY,
CASE NO. 5:12CV2126
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 67, 68, 78,
85 and 94]
Non-Party 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. 94.1 The Court has reviewed the above filings, the relevant portions of the record, and the
governing law and renders the ruling below.
I. Procedural Backgound
On de novo review, the following detailed recitation of the protracted manner in which
this discovery dispute unfolded may be informative.
The non-party objections at ECF Nos. 67, 68 and 85 to the Orders issued by the
magistrate judge (ECF Nos. 63 and 81) are considered herein to the extent relevant and
RLI 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.2 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
RLI concedes that Mazanec asserted objections to the Subpoena prior to filing
its motion to quash. See ECF No. 101 at PageID #: 3892.
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.3 ECF No. 52.4
On June 2, 2016, the magistrate judge issued an Order (the “June Order”) (ECF No. 63)
stating that, pursuant to Rule 45(d)5, 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
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
In its Order of Reference (ECF No. 52), the Court referred two (2) non-party
discovery disputes in this action to the magistrate judge. To avoid confusion, this writing
addresses only the discovery dispute between Non-party Mazanec and RLI. Text from
the magistrate judge’s orders, where applicable and/or referenced, is reduced/redacted to
Because this case is now closed pending appeal, the Court would be remiss not
to mention that while this discovery dispute was unfolding both Plaintiff Selective’s
Motion for Summary Judgment (ECF No. 48) and RLI’s Second Motion for Summary
Judgment/Motion for Reconsideration (ECF No. 50) were pending before the Court. The
motions were filed on April 11 and 12, 2016, respectively.
The Court notes that the magistrate judge mistakenly attributed his finding
pursuant to subdivision (c) of Rule 45. Accordingly, the Court hereby corrects this
oversight and holds that subdivision (d) is the applicable provision under the current
version of Rule 45. See Fed. R. Civ. P. 45(c) advisory committee’s note to 2013
amendment (“Subdivision (c) is new.”); Fed. R. Civ. P. 45(d) advisory committee’s note
to 2013 amendment (“Subdivision (d) contains the provisions formerly in subdivision
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.”6 Id. at
PageID #: 1662.
Mazanec 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.7 ECF No. 66 at PageID #: 1674. Because the Court was “not
See Fed. R. Civ. P. 45(d) advisory committee’s notes to 1991 amendment (“A
person claiming a privilege or protection who fails to provide adequate information about
the privilege or protection claim to the party seeking the information is subject to an order
to show cause why the person should not be held in contempt [.]”).
Mazanec also filed an objection to “(1) the part of the [magistrate judge’s O]rder
which ‘concludes that the protections of the work product doctrine are inapplicable here
because the subpoenaed materials were not prepared in preparation for this litigation,’ and
(2) the omission from the Order of a determination of applicability of the settlement
privilege established by the Sixth Circuit.” See ECF No. 67 at PageID #: 1676.
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.
The 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
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 quash. Id.
Thereafter, 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 documents”:
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 medical records);
4. [Mazanec’s] emails and correspondence with opposing
counsel and other non-privileged third-parties;
5. Attorney memos/notes.
Id. RLI averred that the list above included documents that “require minimal review (if any).”
Id. Mazanec responded by asserting that the parties still disagree as to the materials protected by
privilege, that its work-product doctrine and the settlement privilege objections (ECF No. 67)
were still pending before the Court, and that RLI’s Notice was unresponsive to the magistrate
judge’s inquiry as to “whether it is willing to reimburse [Mazanec] for the estimated costs of
complying with the subpoenas.” ECF No. 72.
On August 16, 2016, the magistrate judge issued an Order (the “August Order”) (ECF
No. 76) granting, in part, and denying, in part, Mazanec’s motion to quash. The magistrate judge
found that Mazanec “provided sufficient information to the [C]ourt to establish that compliance
with the [Subpoena] would create an undue burden.” ECF No. 76 at PageID #: 1730. The
magistrate judge also found that while “[Mazanec] filed estimates of the costs they purportedly
would incur if the [C]ourt were to enforce the [Subpoena] as issued by [RLI, the magistrate
judge] agrees with RLI that [Mazanec’s] estimate could have been greatly limited.” Id.
Moreover, the magistrate judge found that “the estimate of costs submitted by [Mazanec did] not
appear to be a good faith estimate of the actual costs that would be involved with compliance
with the [Subpoena].” Id. at PageID #: 1730 n.3. In addition, the magistrate judge made note of
Mazanec’s concession that “producing certain portions of the subpoenaed materials would not be
Because the magistrate judge found that Mazanec would not produce any of the
subpoenaed materials absent a court order (Id.), the magistrate judge ordered that “the
[Subpoena] be modified to avoid undue burden to [Mazanec]” pursuant to Rule 45(d)(3)(A). Id.
at PageID #: 1730. The magistrate judge modified the subpoena (hereinafter the “Modified
Subpoena”) to require the production of the same list of materials that RLI presented to the Court
in its Notice (ECF No. 71) as not protected by attorney-client privilege and requiring minimal
review, with one exception as follows:
The court hereby modifies the subpoenas issued to MR&R and
Scottsdale to require the production of 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 nonprivileged third parties; and
5. Attorneys memos and/or notes (excepting those which were
prepared in relation to the present case, 5:12-cv-2126).
Id. at PageID #: 1730-31 (emphasis added to the only modification made by the magistrate judge
to RLI’s modified production list). The magistrate judge also instructed Mazanec to “submit a
privilege log within five days if it had a good faith belief that any of the materials listed was
privileged.” Id. at PageID #: 1731. On the sixth day, a privilege log was emailed to the
magistrate judge. See Report & Recommendation, ECF No. 88 at PageID #: 3679.
Thereafter, Mazanec produced “a flash drive of documents and a box of CD’s and DVD’s
with video and/or audio recording” to RLI. See Objection to Report & Recommendation, ECF
No. 94 at PageID #: 3713. On the same day, Mazanec filed a Statement of Costs for Responding
to RLI’s Subpoena, as Modified (ECF No. 77) indicating costs in the amount of $17,494.32 for
(1) reviewing and producing documents requested in the Modified Subpoena, (2) preparing logs
of materials for which protection and/or privilege against production was asserted, and (3)
document retrieval and duplication expenses. ECF No. 77 at PageID #: 1733. Pursuant to Rule
45(d)(3)(A)(iv), Mazanec also filed a motion (ECF No. 78) requesting that the Court issue an
order requiring that RLI pay Mazanec the amount of $17,494.32 because Mazanec was
“subjected to undue burden” when it “under[took] significant document review and log
preparation to comply with the [August Order] and respond to the [Modified Subpoena.]” See
Brief in Support of Motion, ECF No. 79 at PageID #: 1740-41.
After Mazanec untimely filed its privilege log pursuant to the magistrate judge’s August
Order, the magistrate judge issued yet another Order (the “September Order” ) (ECF No. 81)
addressing Mazane’s prior objections (ECF No. 67) and the deficiencies inherent in the
privileges claimed by Mazanec in its privilege log. The magistrate judge included a more
thorough account of the legal reasoning behind his earlier holding (in the June Order) that the
protections of Fed. R. Civ. P. 26(b)(3)’s work product doctrine do not apply to non-parties.
Therefore, the magistrate judge found that Mazanec may not assert the protection as a non-party
to this action. ECF No. 81 at PageID #: 1746-49.8 The magistrate judge also found that
Mazanec did not seek a protective order pursuant to Fed. R. Civ. P. 26( c) and has “not
demonstrated that [it] would suffer annoyance, embarrassment, oppression or undue burden or
expense if required to comply with the revised subpoena.” Id. at PageID #: 7149. Moreover, the
magistrate judge found that Mazanec’s assertion of protections for communications between
experts and attorneys pursuant to Fed. R. Civ. P. 26(b)(4) unsupported and ordered Mazanec to
produced for in camera review those documents for which Mazanec asserted protections. Id.
Mazanec responded explaining the grounds for asserting the protections of Rule 26(b)(4). ECF
No. 84. Mazanec also filed objections (ECF No. 85) to the magistrate judge’s September Order
repeating the arguments made in its earlier objections (ECF No. 67) to the magistrate judge’s
ruling that the work product doctrine does not apply to non-parties. ECF No. 85.
After considering all of the pleadings before him, the magistrate judge recommends that
the Court issue an Order awarding Non-Party Mazanec the amount of $14,174.32 for the
reasonable costs of complying with the Modified Subpoena. ECF No. 88 at PageID #: 3678,
3682. The magistrate judge recommends the Court: (1) reduce the amount by $1,440.00 for
“reduc[ing] the hours charged by partner Carl E. Cormany for his preparation of the cost estimate
See also Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., No. 93-3084,
1994 WL 58999, at *4 (6th Cir. 1994) (holding that non-parties to the litigation are not
protected by the work product doctrine of Fed. R. Civ. P. 26(b)(3)).
to comply with the original subpoena from 17.9 hours to 9.9 hours[;]” and (2) strike the entire
$1,880.00 cost for work done by Rachel Wolfe, a legal assistant, for work that “appear[s] to
duplicate the work done by other paralegals or lawyers” and because Ms. Wolfe normally
functions as an administrative assistant. Id. at PageID #: 3683.
Shortly after the magistrate judge issued his recommendation, the Court granted summary
judgment against RLI entitling Plaintiff Selective to full recovery of $3.25 million from RLI.
ECF Nos. 91 and 92. The matter is now closed with an appeal by RLI pending before the Sixth
Circuit (No. 16-4199).
II. Standards of Review
A. Standard of Review for Magistrate Judge’s Report and Recommendation
When objections have been made to a magistrate judge’s Report and Recommendation,
the district court’s standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
Near verbatim regurgitation of the arguments made in earlier filings are not true
objections. When an “objection” merely states disagreement with the magistrate judge’s
suggested resolution, it is not an objection for the purposes of this review. Cvijetinovic v.
Eberlin, 617 F. Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other grounds, 617 F.3d 833 (6th
Cir. 2010). Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See
Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party
who files objections to a magistrate [judge]’s report in order to preserve the right to appeal must
be mindful of the purpose of such objections: to provide the district court ‘with the opportunity
to consider the specific contentions of the parties and to correct any errors immediately.’” Id.
(citing United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)).
Accordingly, the undersigned has conducted a de novo review of the portions of the
magistrate judge’s Report to which RLI has properly objected.
B. Standard of Review for Magistrate Judge’s Ruling on Non-Dispositive Motions
Because Petitioner has objected to rulings on non-dispositive motions, review is governed
by Local Rule 72.3(a):
Any party may appeal from a Magistrate Judge’s order determining
a motion or matter made pursuant to Fed. R. Civ. P. 72(a) within
fourteen (14) days after service of the Magistrate Judge’s order. Such
party shall file with the Clerk of Court, and serve on the Magistrate
Judge and all parties, a written statement of appeal which shall
specifically designate the order, or part thereof, appealed from and the
basis for any objection thereto. The District Judge to whom the case
was assigned shall consider the appeal and shall set aside any portion
of the Magistrate Judge’s order found to be clearly erroneous or
contrary to law. The District Judge may also consider sua sponte any
matter determined by a Magistrate Judge under this Rule.
“The ‘clearly erroneous’ standard applies to the magistrate judge’s findings of fact, and
the magistrate judge’s legal conclusions are reviewed under the ‘contrary to law’ standard.”
Champion Foodservice, LLC v. Vista Food Exch., Inc., No. 1:13-CV-1195, 2015 WL 7251307,
at *1 (N.D. Ohio Nov. 16, 2015) (quoting Gandee v. Glasser, 785 F. Supp. 684, 686 (S.D. Ohio
1992) (citations omitted)). “In reviewing a magistrate judge’s decision to determine whether it is
‘contrary to law,’ a district court is to apply the same standard the Sixth Circuit employs to
review a district court’s ruling on an evidentiary question, which is an ‘abuse of discretion’
standard.” Id. (citations omitted). An abuse of discretion occurs when the magistrate judge
“applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly
erroneous findings of fact.” Paschal v. Flagstar Bank, 297 F.3d 431, 434 (6th Cir. 2002)
(quoting First Tech. Safety Sys. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993)).
RLI objects to the magistrate judge’s recommendation on the following four (4) grounds:
The Report & Recommendation cannot retroactively find undue burden in
complying with an Order that expressly modified the subpoena to avoid undue
[Mazanec’s] alleged costs are not costs to comply with the subpoena, but rather
are costs to protect the alleged privileges of Plaintiff Selective Insurance
Company of the Southeast as assignee of the defendants in Elkins v. City of
Barberton, No. 5:06-CV-3004, in the United States District Court for the
Northern District of Ohio and/or privileges directly asserted by the Elkins
Lawsuit defendants themselves;
[Mazanec] waived any claim of continuing undue burden by complying with the
Order modifying the subpoena, rather than objecting to the Order; and
Fed. R. Civ. P. 45 allows costs “instead of” modification of the subpoena, not in
ECF No. 94 at PageID #: 3709.
Pursuant to Rule 45(d)(3)(A)(iv), Mazanec seeks an order requiring RLI to pay
Mazanec’s costs for compliance with the Modified Subpoena (ECF No. 76) to avoid undue
burden. ECF No. 79 at PageID #: 1740-41. Rule 45 provides, in part, that “the issuing court
must quash or modify a subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A)(iv) (emphasis added). The magistrate judge modified the Subpoena (ECF No. 40-2)
to avoid undue burden and denied, in part, Mazanec’s motion to quash the Subpoena (ECF No.
41). ECF No. 76. Although RLI did not file a motion to compel, it did file a Notice (ECF No.
71) requesting the Court enforce proposed modifications to the Subpoena. The Court construes
RLI’s Notice—which made the request for enforcement—as a motion to compel production
under the Modified Subpoena pursuant to Rule 45(d)(2)(B)(i). The magistrate judge
incorporated RLI’s proposed modifications into the Modified Subpoena nearly verbatim. The
Court finds that the resulting August Order served as both the Modified Subpoena, pursuant to
Rule 45(d)(3)(A)(iv), and an order compelling production of the subpoenaed materials, pursuant
Pursuant to Rule 45(d)(2)(B)(ii), any order compelling production “must protect a person
who is [not] a party . . . from significant expense resulting from compliance” with the order
compelling production. Fed. R. Civ. P. (d)(2)(B)(ii). Thus,
[t]he district judge has the power to modify the scope of the subpoena
and thereby remove the objectionable features from it while
preserving the rest of the subpoena. Or, when a subpoena may prove
burdensome, the court is able to . . . modify upon the person who
requested the subpoena advancing the reasonable cost of producing
the material sought.
9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2463.1 (3d ed.
2013) (emphasis added).
Moreover, Rule 45(d)(2)(B)(ii) may be triggered by a non-party filing an objection to the
subpoena. Fed. R. Civ. P. 45(d)(2)(B). The Advisory Committee Notes to Rule 45(d)(2)
A person served a subpoena that is too broad may be faced with a
burdensome task to provide full information regarding all that
person’s claims to privilege or work product protection. Such a
person is entitled to protection that may be secured through an
objection made pursuant to [Rule 45(d)(2)].
See Fed. R. Civ. P. 45(d) advisory committee’s note to 1991 amendment. “The objection must
be served before the earlier of the time specified for compliance or 14 days after the subpoena is
served.” Fed. R. Civ. P. 45(d)(2)(B).9
Mazanec filed objections (ECF No. 97-1) to RLI’s original Subpoena which triggered the
Court’s authority to protect Mazanec from significant expense of complying with the Subpoena.
See Rule 45(d)(B)(ii). Mazanec estimated that it would cost over $120,000.00 to comply with
RLI’s original Subpoena. ECF No. 66. After the magistrate judge modified the Subpoena,
Mazanec filed a statement (ECF No. 77) indicating that it incurred $17,494.32 in costs
complying with the Modified Subpoena. The cost for complying with the Modified Subpoena
was over $100,000.00 less than the costs Mazanec argued for complying with the original
Subpoena. Notably, the costs incurred included, but was not limited to, the review of 1,900
For good measure, the Court finds Rule 45(d)(1) inapplicable to this dispute as
the record reflects that RLI took reasonable steps to avoid imposing undue burden and
expense by proposing modifications to the Subpoena that significantly reduced the costs
of compliance. The Court also finds Rule 45(d)(3)(B) and (C) inapplicable because Rule
45(d)(3)(B) is only triggered by circumstances that do not exist in this action and Rule
45(d)(3)(C) is only triggered if Rule 45(d)(3)(B) applies.
emails, 17 boxes of physical documents, at least 10 DVD’s, and various audio recordings. ECF
No. 77. Accordingly, the Court finds that the Modified Subpoena (1) advanced the reasonable
cost of producing the material RLI sought and (2) protected Mazanec from the significant
expense of complying with RLI’s original Subpoena pursuant to Rule 45(d)(2)(B)(ii).
Moreover, Mazanec does not dispute that it complied, in part, with the August Order
compelling production (ECF No. 76) under the Modified Subpoena when, on August 26, 2016, it
produced a flash drive of documents and a box of CD’s and DVD’s to RLI. Three (3) days later,
Mazanec filed a motion for payment (ECF No. 78) asserting that undue burden resulted from
complying with the Modified Subpoena pursuant to Rule 45(d)(3)(A)(iv). A review of the
docket reveals that no objections relevant to the Modified Subpoena were filed by Mazanec prior
to complying with the Modified Subpoena. Moreover, Mazanec concedes that it did not object.
See ECF No. 97 at PageID #: 3874 (“RLI did not object to that order, either, and yet apparently
RLI does not think that it waived its right to make its present argument. And neither did
[Mazanec] make any waiver.”) (emphasis added). Although Mazanec asserts that the magistrate
judge’s August Order anticipated that Mazanec might assert some privileges, Mazanec did not
file objections (ECF No. 85) until after the magistrate judge’s September Order compelling
production of the documents that Mazanec claimed were protected under the work product
doctrine and compelling in camera review of documents that Mazanec claimed were protected as
expert witness materials. Mazanec’s last objection repeated the arguments made in its earlier
objections (ECF No. 67). Therefore, while the Court is urged to rule that the protections of Rule
45(d)(3)(B)(ii) relating to Mazanec’s asserted protections and privileges were not triggered. See
Fed. R. Civ. P. 45(d) advisory committee’s note to 1991 amendment. It does not because such a
ruling would run afoul of Rule 45's purpose. “The entire tenor of Rule 45 is to prohibit a party
from shifting its litigation expenses to a non-party.” Georgia-Pac. LLC v. Am. Int'l Specialty
Lines Ins. Co., 278 F.R.D. 187, 190 (S.D. Ohio 2010).
At RLI’s request, the Modified Subpoena compelled the production of, among other
things, “attorneys memos and/or notes (excepting those which were prepared in relation to the
present case, 5:12-cv-2126).” Id. at PageID #: 1730-31. Thus, the record is clear that RLI was
deliberate in sustaining a discovery strategy that would result in Mazanec asserting work product
protections or other privileges. See, e.g., Emails, ECF No. 71-1 at PageID #: 1706 (“I expect you
will object to [the request for the production of attorneys memos and/or notes] on grounds of
work product.”); Id. at PageID #: 1701 (“What I’m interest[ed] in are notes and memos that
debrief events after-the-fact wiith a view toward trial, or otherwise anticipating or strategizing for
trial. In other words, notes which evaluate the trial value of efvidence or develop trial strategy.”)
Even if RLI opined that the review would be minimal, RLI requested the production of
documents requiring review by Mazanec and potentially subject to an assertion that the
documents requested were protected or privileged. Mazanec complied with the Modified
Subpoena, while withholding only those documents that Mazanec asserted were protected or
privileged. The Court construes Mazanec’s withholding materials as sustaining its earlier
objections (ECF No. 67) to the protections it asserted pursuant to the original Subpoena.
Therefore, the Court rules that the protections of Rule 45(d)(3)(B)(ii) relating to Mazanec’s
asserted protections and privileges were, indeed, triggered and the Court may award costs to
avoid the significant expense of complying with the Modified Subpoena and the magistrate’s
orders compelling the production of privilege logs and documents. See Fed. R. Civ. P. 45(d)
advisory committee’s note to 1991 amendment.
RLI was the recipient of the fruits of Non-Party Mazanec’s labor. Accordingly, the Court
finds that RLI’s first, second, and fourth objections to the magistrate judge’s
recommendations—that the Court cannot retroactively find undue burden, that Mazanec cannot
seek an award for the costs of asserting privileges, and that the Court may only award costs or
modify a subpoena under Rule 45(d)—are unsupported by law and the record before the Court.
Those objections are overruled. RLI’s third objection to the magistrate judge’s recommendation
is sustained, in part, and overruled, in part. The Court finds that Mazanec did not object to the
Modified Subpoena. Rather, Maznanec withheld protected and privileged documents for the
same reasons it had asserted in its earlier objections. Mazanec is, therefore, entitled to protection
from the significant expense of providing information to the Court related to its claims of
privilege or work product protection.10
It is worth noting that, although Mazanec’s pending objections (ECF Nos. 67
and 85) to the magistrate judge’s orders (ECF Nos. 63 and 81) are now moot, the Court
finds the magistrate judge’s rulings as to the assertion of the work product doctrine were
not contrary to law and there was no abuse of discretion in ruling that, pursuant to
Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., No. 93-3084, 1994 WL 58999,
at *4 (6th Cir. 1994), non-parties are not protected by the work product doctrine of Fed.
R. Civ. P. 26(b)(3). The Court, hereby, adopts by reference the magistrate judge’s legal
analysis as stated in his September Order. ECF No. 81 at PageID #: 1746-49.
For the aforementioned reasons, the Court adopts the magistrate judge’s recommendation
(ECF No. 88), and grants Mazanec’s motion for an award of costs (ECF No. 78), in part.
It is hereby ordered that RLI pay Non-Party Mazanec, Raskin and Ryder Co. L.P.A.
$14,174.32 for the costs of complying with the Modified Subpoena.
IT IS SO ORDERED.
March 31, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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