Pillar Title Agency et al. v. Pei et al.

Filing 45

ORDER granting in part and denying in part 34 Motion to Quash; granting in part and denying in part 37 Motion to compel discovery; granting in part and denying in part 40 Motion to Compel; denying 42 Motion to Quash; denying 42 Motion for Sanctions; denying 31 Motion for Court Ordered Mediation. Signed by Magistrate Judge Terence P. Kemp on 5/12/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text and added link on 5/12/2015 (agm).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Pillar Title Agency, et al.,
Plaintiffs,

:
:

v.

:
:

Defendants.

JUDGE EDMUND A. SARGUS, JR.

:

Yezhe Pei, et al.,

Case No. 2:14-cv-525
Magistrate Judge Kemp

OPINION AND ORDER
This matter is before the Court on several motions.
Specifically, the following motions, filed by Defendant Yezhe
Pei, are before the Court for resolution: the “motion to quash
plaintiff Blazek’s discovery requests which violate court order”
(Doc. 34); the “motion to compel Blazek to serve documents to
defendants pursuant to F.R.C.P. 5, for fair time to reply, and
memorandum that plaintff [sic] Blazek have [sic] lied again”
(Doc. 40); and the “motion pursuant to Fed. R. Civ. P. 26 and to
quash plaintiff Blazek’s discovery, and to sanction plaintiff
Blazek for contempt of court” (Doc. 42).

Also before the Court

are Plaintiffs’ “motion for court ordered mediation via attorney
mediator” (Doc. 31) and motion to compel (Doc. 37).

For the

reasons set forth below, the following motions will be granted in
part and denied in part:

Mr. Pei’s “motion to quash plaintiff

Blazek’s discovery requests which violate court order” (Doc. 34),
Plaintiffs’ motion to compel (Doc. 37), and Mr. Pei’s “motion to
compel Blazek to serve documents to defendants pursuant to
F.R.C.P. 5, for fair time to reply, and memorandum that plaintff
[sic] Blazek have [sic] lied again” (Doc. 40).

Mr. Pei’s “motion

pursuant to Fed. R. Civ. P. 26 and to quash plaintiff Blazek’s
discovery, and to sanction plaintiff Blazek for contempt of
court” (Doc. 42) and Plaintiffs’ “motion for court ordered
mediation via attorney mediator” (Doc. 31) will be denied.

I. Background
Plaintiffs Pillar Title Agency and James N. Blazek filed
this lawsuit on June 4, 2014 against Defendants Yezhe Pei and
Yelp! Corporation alleging that Mr. Pei published false
statements about them on the internet. More specifically,
Plaintiff brought claims for defamation, libel, negligence, and
negligent infliction of emotional distress/intentional infliction
of emotional distress. Plaintiffs later voluntarily dismissed
Yelp! Corporation from this lawsuit. Plaintiffs also filed a
motion seeking injunctive relief, which the Court denied.
On August 22, 2014, Plaintiffs filed an amended complaint
against Mr. Pei and Advameg, Inc. d.b.a. City Data alleging
defamation, libel, negligence, negligent infliction of emotional
distress/intentional infliction of emotional distress, and
tortious interference with business relations. Plaintiffs later
dismissed Advameg, Inc. d.b.a. City Data.
Thereafter, Mr. Pei filed an unopposed motion to quash a
subpoena issued by Plaintiffs to his employer and for a
protective order directing that information responsive to the
subpoena not be provided to Plaintiffs. In the motion, Mr. Pei
represented that he was not served with a copy of the subpoena
issued to his employer. In an order issued on January 16, 2015,
the Court accepted Mr. Pei’s factual representation, quashed the
subpoena, and granted the protective order. In addition, the
Court advised Plaintiffs to avoid any future noncompliance with
Fed. R. Civ. P. 45(a)(4).
On February 10, 2015, Mr. Pei filed a “motion to quash
plaintiff Blazek’s discovery requests which violate court order.”
(Doc. 34). In the motion, Mr. Pei seeks to quash discovery on
the grounds that “this Court lacks personal jurisdiction (FRCP
12(B)(2))” over him, and the discovery requests “the same
documents that have been prohibited by the Court Order (Doc.
30).” Id. at 2. Mr. Pei argues that, in seeking the discovery,
Plaintiffs have violated the Court’s January 16, 2015 order.
Consequently, Mr. Pei “moves for sanctions ... against Plaintiff
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Blazek, which include the dismissal of this case and a monetary
fine.” Id. Plaintiffs filed a memoranda in opposition to the
motion to quash and motion to compel discovery on February 18,
2015. (Doc. 37).
On March 16, 2015, Mr. Pei filed a “motion to compel Blazek
to serve documents to defendants pursuant to F.R.C.P. 5, for fair
time to reply, and memorandum that plaintff [sic] Blazek have
[sic] lied again” (Doc. 40).

In the motion, Mr. Pei contends

that Plaintiffs failed to serve him with their memorandum in
opposition to his motion to quash (Doc. 37) and their response to
his pending motion for Rule 11 sanctions, for attorneys’ fees,
and for an oral hearing (Doc. 38).

Mr. Pei requests that the

Court compel Plaintiffs to provide him with service of these
documents and grant him fourteen days from the time of service to
file a response.

Plaintiffs have not opposed Mr. Pei’s motion.

On March 27, 2014, Mr. Pei filed a “motion pursuant to Fed.
R. Civ. P. 26 and to quash plaintiff Blazek’s discovery, and to
sanction plaintiff Blazek for contempt of court.”

(Doc. 42).

Mr. Pei contends that, under Fed. R. Civ. P. 26(d) and (f), a
party may not seek discovery prior to the parties conferring.
Mr. Pei states, “Plaintiff Blazek did not contact Defendant Pei
in any means to discuss discoveries [sic], nor did he attempted
[sic] to do so before he sent out his discovery in January 2015.”
(Doc. 42).

On this basis, Mr. Pei seeks to quash Plaintiffs’

discovery requests.

Mr. Pei also states that it is “reasonable

to levy a fine on Plaintiff Blazek for his waste of court
resources and contempt of court.”

Id. at 3.

Plaintiffs filed a

memoranda in opposition to the motion on April 8, 2015.

(Doc.

43).
Plaintiffs filed a “motion for court ordered mediation via
attorney mediator.”

(Doc. 31).

Although Mr. Pei did not file a

memoranda in opposition, he addresses Plaintiffs’ motion in his
“motion to dismiss the case and to sanction pliantiff [sic]
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Blazek for his contempt of court and persuant [sic] to F.R.C.P.
11.”

(Doc. 35).

Mr. Pei states that, “[i]n short, because of

Plaintiff Blazek’s dishonesty, mediation via attorney may be
another waste of litigation resource [sic].”

Id. at 35.

Thus,

Mr. Pei does not wish to mediate the matter at this time.
II. Discussion
This Court first examines Mr. Pei’s “motion to quash
plaintiff Blazek’s discovery requests which violate court order.”
(Doc. 34). As an initial matter, and contrary to Mr. Pei’s
argument, the Court will not quash Plaintiffs’ discovery requests
on the ground that this Court lacks personal jurisdiction over
him. That issue is before the District Judge and need not be
resolved in order to address the discovery dispute raised in Mr.
Pei’s motion. Turning to the substance of the motion, Mr. Pei
does not set forth or attach the disputed discovery requests. He
does, however, specifically object to Plaintiffs’ request for
“all paystubs from the employer Oppenheimer Company or
Oppenheimer Brokerage,” on the grounds that this request was
“denied in the Court Order” issued on January 16, 2015. Id. at
3. Although not entirely clear, Mr. Pei seems to suggest that
Plaintiffs again issued a subpoena from his employer to obtain
the requested information.
In their memoranda in opposition, Plaintiffs attach the
requests that are purportedly at issue, which are directed to Mr.
Pei, and not to his employer. The requests ask Mr. Pei to:
1.
Produce all documents, affidavits, witnesses and
witness’s statements attesting to your contention
that you intend to use at trial in this matter.
2.

Produce copies of all exhibits that you intend to
introduce in this case.

3.

Produce all documents that you intend to introduce
in this case in support of your claims or in your
defense.

4.

Produce all witness names you intend to use at
trial in this matter.
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5.

Produce all paystubs from the employer Oppenheimer
Company or Oppenheimer Brokerage, [sic]

(Doc. 37, Ex. 1 at 2). In addition to opposing Mr. Pei’s motion,
Plaintiffs move the Court to compel the requested discovery.
Although the motion to compel appears to be directed to Mr. Pei,
who is the recipient of the attached discovery requests,
Plaintiffs ask the Court to “compel Microsoft to produce the
documents requested....” Id. at 3. They also move “to compel
Defendant to mediate,” which is the subject of a separate motion.
Id.
Information subject to disclosure during discovery need not
relate directly to the merits of the claims or defenses of the
parties. Rather, it may also relate to any of the myriad of
fact-oriented issues that arise in connection with the
litigation. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98
S. Ct. 2380, 57 L. Ed. 2d 253 (1978). On the other hand, the
Court has the duty to deny discovery directed to matters not
legitimately within the scope of Rule 26, and to use its broad
discretionary power to protect a party or person from harassment
or oppression that may result even from a facially appropriate
discovery request.
(1979).

See Herbert v. Lando, 44l U.S. 153

Additionally, the Court has discretion to limit or even

preclude discovery which meets the general standard of relevance
found in Rule 26(b)(1) if the discovery is unreasonably
duplicative, or the burden of providing discovery outweighs the
benefits, taking into account factors such as the importance of
the requested discovery to the central issues in the case, the
amount in controversy, and the parties’ resources.
Civ. P. 26(b)(2).

See Fed. R.

Finally, the Court notes that the scope of

permissible discovery which can be conducted without leave of
court has been narrowed somewhat by the December 1, 2000
amendments to the Federal Rules.

Rule 26(b) now permits

discovery to be had without leave of court if that discovery “is

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relevant to the claim or defense of any party ....”

Upon a

showing of good cause, however, the Court may permit broader
discovery of matters “relevant to the subject matter involved in
the action.”

Id.

There is no question that “‘[t]he proponent of a motion to
compel discovery bears the initial burden of proving that the
information sought is relevant.’” Guinn v. Mount Carmel Health
Systems, 2010 WL 2927254, *5 (S.D. Ohio July 23, 2010) quoting
Clumm v. Manes, Case No. 2:08–cv–567 (S.D.Ohio May 27, 2010)
(King, J.); see also Berryman v. Supervalu Holdings, Inc., 2008
WL 4934007 (S.D. Ohio Nov.18, 2008) (“At least when the relevance
of a discovery request has been challenged the burden is on the
requester to show the relevance of the requested information.”)
(internal citation omitted).

When the information sought appears

to be relevant, the party resisting production has the burden of
establishing that the information either is not relevant or is so
marginally relevant that the presumption of broad disclosure is
outweighed by the potential for undue burden or harm.

See

Vickers v. General Motors Corp., 2008 WL 4600997, *2 (W.D. Tenn.
September 29, 2008).
With the exception of request number five, the information
which Plaintiffs requested from Mr. Pei is subject to disclosure
under Fed. R. Civ. P. 26(a)(1). Request number five, which seeks
all paystubs from the employer Oppenheimer Company or Oppenheimer
Brokerage, warrants separate consideration. It is unclear to
this Court how Mr. Pei’s paystubs are relevant to Plaintiffs’
claims that Mr. Pei published false statements about them on the
internet. Plaintiffs bear the initial burden of proving that the
information that they seek is relevant, and they have failed to
satisfy that burden with respect to request number five.
Consequently, Mr. Pei’s motion to quash will be denied to the
extent that it applies to Plaintiffs’ requests numbered one
through four and granted as to request number five (Doc. 34), and
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Plaintiffs’ motion to compel will be granted as to requests
numbered one through four and denied as to request number five
(Doc. 37). The Court shall decide the mediation issue separately
as raised in Plaintiffs’ motion.
The Court now turns to Mr. Pei’s “motion to compel Blazek to
serve documents to defendants pursuant to F.R.C.P. 5, for fair
time to reply, and memorandum that plaintff [sic] Blazek have
[sic] lied again” (Doc. 40).

Plaintiffs have not filed a

memorandum in opposition to Mr. Pei’s motion.

However, in the

midst of addressing a different motion filed by Mr. Pei,
Plaintiffs state “[t]o concisely address the matter of failure to
serve Defendant with all notices of motions and subpoenas,
Plaintiffs have attached as Exhibit “A” a partial list of said
notices; Plainitiffs [sic] only oversight in service was in [sic]
negligent oversight in sending the 3/18/15 motion.

Defendant was

granted addition [sic] time and the issue is now moot.”
at 3).
2015.

(Doc. 43

There is no motion on this Court’s docket dated March 18,
On that date, Plaintiff Blazek filed a “notice of

confirmation of email service transmitted to defendant Pei.”
(Doc. 41).

In the notice, Mr. Blazek states that he served Mr.

Pei with Plaintiffs’ response to Mr. Pei’s motion for Rule 11
sanctions, for attorneys’ fees, and for an oral hearing (Doc.
38).

Mr. Blazek is less clear about whether Plaintiffs served

Mr. Pei with their memorandum in opposition to his motion to
quash (Doc. 37).

Mr. Blazek states:

[a]lthough Plaintiff cannot ascertain when the email for
motion #37 was sent, he is certain that Defendant Pei
would maintain the another [sic] assertion that he never
received the motion. It is quite possible that Defendant
Pei destroyed all of the emails; he did so when the
Department of Homeland Security requested he provide them
with email copies.
(Doc. 41 at 1).

Mr. Blazek maintains that “Plaintiffs do not

intend to hide any of the filings with the Court and have been
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able to substantiate service on each and every filing up to
Document #37.”

Id.

The attachment to the notice purports to

show service of Document #38 on February 24, 2015; however, Mr.
Pei maintains in a response e-mail that he did not receive notice
until March 11, 2015.

Based upon the findings above, Mr. Pei’s

motion to file a response to Plaintiffs’ opposition to his motion
to quash, Document #37, is now moot.

As the Court noted, the

information sought by Plaintiffs in requests numbered one through
four is subject to disclosure under Fed. R. Civ. P. 26(a)(1), and
Mr. Pei’s motion to quash will be granted as to request number
five. Thus, Mr. Pei need not file a response to Document #37.
As to Document #38, although it does appear that Mr. Pei received
service of this document at some point in time, it is still
unclear whether Mr. Pei had an adequate opportunity to respond.
Given that Mr. Pei’s motion for Rule 11 sanctions, for attorneys’
fees, and for an oral hearing is still pending, the Court will
grant Mr. Pei’s motion (Doc. 40) to the extent that it requests a
fair time to respond to Document #38.

Mr. Pei will be granted

fourteen days from the issuance of this Opinion and Order to file
a response to Document #38.
Next, the Court considers Mr. Pei’s “motion pursuant to Fed.
R. Civ. P. 26 and to quash plaintiff Blazek’s discovery, and to
sanction plaintiff Blazek for contempt of court.”

(Doc. 42).

Mr. Pei’s motion seems to based on Fed. R. Civ. P. 26(f), which
provides that discovery may not ordinarily begin prior to the
Rule 26(f) conference.

The record reflects that the parties have

met and conferred concerning discovery issues in this case, but
there has been no reasonable progress made such that the Court
would find an additional conference warranted.

Further,

according to Plaintiffs, “absolutely no discovery has yet
transpired in this case, nor has it been allowed by Defendant to
transpire.”

(Doc. 43 at 1).

motion will be denied.

Based upon the foregoing, Mr. Pei’s

(Doc. #42).
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Finally, the Court turns to Plaintiffs’ “motion for court
ordered mediation via attorney mediator.”

(Doc. 31).

As noted

above, Mr. Pei does not wish to mediate at this time.

The Court

has reviewed Plaintiffs’ request and finds that this case is not
ripe for mediation at this time.
be denied.

Thus, Plaintiffs’ motion will

If Plaintiffs chose to do so, they may re-file their

motion for the Court’s consideration after the Court has ruled on
the dispositive motions.
III. Conclusion
For the reasons set forth above, the “motion to quash
plaintiff Blazek's discovery requests which violate court order”
is denied to the extent that it applies to Plaintiffs’ requests
numbered one through four and granted as to request number five
(Doc. 34), and Plaintiffs’ motion to compel is granted as to
requests numbered one through four and denied as to request
number five (Doc. 37). The “motion to compel Blazek to serve
documents to defendants pursuant to F.R.C.P. 5, for fair time to
reply, and memorandum that plaintff [sic] Blazek have [sic] lied
again” is granted to the extent that Mr. Pei requests a fair time
to respond to Document #38.

(Doc. 40)

Mr. Pei is granted

fourteen days from the issuance of this Opinion and Order to file
a response to Document #38.

The remainder of Mr. Pei’s “motion

to compel Blazek to serve documents to defendants pursuant to
F.R.C.P. 5, for fair time to reply, and memorandum that plaintff
[sic] Blazek have [sic] lied again” is denied as moot.
40).

(Doc.

Mr. Pei’s “motion pursuant to Fed. R. Civ. P. 26 and to

quash plaintiff Blazek’s discovery, and to sanction plaintiff
Blazek for contempt of court” is denied.

(Doc. 42).

Finally,

Plaintiffs’ “motion for court ordered mediation via attorney
mediator” is denied. (Doc. 31).
IV. Procedure for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
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reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
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.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge

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