Zell v. Klingelhafer et al

Filing 94

ORDER granting 77 Plaintiff's Motion to Compel; denying 83 Defendants' Motion for Protective Order. Defendants are ORDERED to respond to Plaintiff's Second Set of Interrogatories within fourteen (14) days of the date of this Order and to Plaintiff's Discovery requests within thirty (30) days of the date of this Order. Signed by Magistrate Judge Mark R. Abel on 9/30/2014. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Eileen L. Zell,

:
Plaintiff

:

Civil Action 2:13-cv-0458

:

Judge Marbley

Katherine M. Klingelhafer, et al.,

:

Magistrate Judge Abel

Defendants

:

v.

ORDER
This matter is before the Magistrate Judge on plaintiff Eileen L. Zell’s July 11,
2014 motion to compel (doc. 77) and defendants’ August 21, 2014 motion for a
protective order (doc. 83).
Allegations in the Complaint. The complaint alleges claims for legal
malpractice, breach of fiduciary duty, and breach of contract. It makes the following
allegations. In December 2000, plaintiff Eileen L. Zell loaned $90,000 to her nephew
Michael Mindlin to help fund his architectural firm. Mrs. Zell was then an Ohio
resident, and Mindlin lived in Missouri. When the loan was not repaid, Zell hired
defendant Frost Brown Todd LLC in early 2009 to advise her on how to collect the debt
before the statute of limitations expired. On October 12, 2010, the debtors sued Zell in
the Court of Common Pleas for Franklin County, Ohio. Frost Brown Todd LLC
defended Mrs. Zell. They filed a counterclaim for the $90,000 balance due. That claim
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was dismissed because it was barred by the 6-year Ohio statute of limitations, not the 8year Missouri statute of limitations. After the Court of Appeals affirmed the trial court’s
decision, Frost Brown Todd LLC withdrew from representing Zell. Frost Brown Todd
LLC billed Zell $73,857.80 for their legal services representing her in defense of the
lawsuit. She paid $56,678.39, leaving an unpaid balance of $17,179.41.
The complaint further alleges that Mrs. Zell communicated with Frost Brown
Todd LLC through her son, third-party defendant Jonathan R. Zell, an attorney licensed
to practice in Ohio, but without any litigation experience. He acted as her personal
attorney. Defendant Frost Brown Todd LLC has filed a counterclaim seeking payment
of the $17,179.41 unpaid balance of the their legal fees bill to Mrs. Zell. Third-party
defendant Jonathan R. Zell asserts that he acted as his mother's personal attorney and
did not act as co-counsel representing her in the Mindlin lawsuit.
Motion to Compel. On February 6, 2014, plaintiff served defendants with her
Second Set of Interrogatories. Plaintiff maintains that defendants never responded to
these interrogatories, and defendants failed to address their failure to respond in their
memorandum in opposition to plaintiff’s motion to compel. Defendants are ORDERED
to respond to plaintiff’s Second Set of Interrogatories within fourteen (14) days of the
date of this Order.
Plaintiff argues that in responding to plaintiff’s First Set of Requests for
Production of Documents with One Interrogatory, defendants omitted many documents
covered by Request No. 4. That request sought
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All communication, correspondence, notes and documents by Defendants
whether retained by Defendants or shared with any other attorneys
including other Defendants, i.e., in house memos between Defendants,
regarding the promissory note, Mindlin V. Zell, Jonathan Zell, Eileen Zell
and personal notes by Defendants.
Doc.77-8 at PageID# 882. Defendants responded as follows:
Objection. This request is overbroad and unduly burdensome. Further it
seeks documents which may be subject to work product of individual
attorneys which are not subject to disclosure. Without waiving,
Defendants have produced all documents in their possession that are
otherwise responsive to this request. To the extent that additional
documents are found to exist, Defendants will produce same.
Id. Based on emails between Jonathan R. Zell and attorneys with Frost Brown Todd
(“FBT”), plaintiff maintains that other documents exist that were not produced.
Specifically, plaintiff seeks defendants’ internal correspondence containing the legal
research on which defendants based their advice to plaintiff un the underlying case;
defendants’ internal correspondence concerning Mr. Zell’s role in the underlying case;
the internal correspondence between defendants, and particularly that of defendant
Dehner; and defendants’ internal correspondence concerning Mr. Zell’s request to Mr.
Dehner that FBT compensate plaintiff for her losses suffered as a result of the alleged
malpractice and Mr. Dehner’s request that plaintiff delay pursuing her claim until the
appellate court issued a ruling.

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The Court cannot compel defendants to produce what does not exist.1
Defendants, however, are obligated to respond honestly and completely to discovery
requests, and failure to do so will result in sanctions. Bratka v. Anheuser-Busch, 164
F.R.D. 448, 463 (S.D. Oh. 1995). If plaintiff believes that such written communications
once existed, she may serve discovery requests within fourteen days of the date of this
Order to further explore this issue. In the alternative, plaintiff may depose Mr. Dehner
or the other defendants with respect to this issue.
Motion for a Protective Order. Defendants seek a protective order with respect
to discovery requests that were served three days prior to the close of discovery.
Plaintiff reports that she was under the mistaken belief that discovery requests
had to be served prior to the deadline for completing discovery rather than served
within the discovery period and allowing sufficient time for the opposing party to
respond prior to the deadline. Plaintiff maintains that she would have proceeded
differently had she understood what the deadline meant by serving her discovery
requests earlier and seeking an extension of time of the deadline.
Plaintiff and third party defendant are proceeding pro se. Unrepresented parties
are still bound by the Federal Rules of Civil Procedure. Additionally, third-party
defendant, Mr. Zell, is a licensed attorney, although he does not practice law. Plaintiff
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Although defendants’ response to Document Request No. 4 asserts work
product protection and states they have produced all documents in their possession
“that are otherwise responsive to this request” (emphasis added), their brief asserts that
no documents subject to work product protection or attorney client privilege were
withheld. Doc. 79 at PageID 916.
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and third-party defendant argue that the delay in serving the discovery requests was, in
part, the result of defendants failure to respond to earlier discovery requests
propounded by plaintiff. In fact, in its briefing to the Court on plaintiff’s motion to
compel, defendants have failed to acknowledge their apparent failure to provide any
response to plaintiff’s February 6, 2014 Second Set of Interrogatories. Therefore,
defendants are ORDERED to respond to plaintiff’s July 22, 2014 discovery requests
within thirty (30) days of the date of this Order.
Conclusion. For the reasons stated above, plaintiff Eileen L. Zell’s July 11, 2014
motion to compel (doc. 77) is GRANTED and defendants’ August 21, 2014 motion for a
protective order (doc. 83) is DENIED.
Defendants are ORDERED to respond to plaintiff’s Second Set of Interrogatories
within fourteen (14) days of the date of this Order and to plaintiff’s July 22, 2014
discovery requests within thirty (30) days of the date of this Order.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.

s/Mark R. Abel
United States Magistrate Judge
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