Great Southland Limited v. Landash Corporation, et al.

Filing 182

OPINION AND ORDER: Plaintiff's request to depose Mr. Jacobs and Ms. Friedman is GRANTED. XPO's request for Plaintiff's unredacted meeting minutes is GRANTED. The parties are ORDERED to meet and confer and file a proposed revised case s chedule within 14 days. Signed by Magistrate Judge Kimberly A. Jolson on 1/21/2021. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified opinion status on 1/22/2021 (ew).

Case: 2:17-cv-00719-SDM-KAJ Doc #: 182 Filed: 01/21/21 Page: 1 of 7 PAGEID #: 2515

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

GREAT SOUTHLAND LIMITED,
Plaintiff,
v.

Civil Action 2:17-cv-719
Judge Sarah D. Morrison
Magistrate Judge Jolson

LANDASH CORPORATION, et al.,

Defendants.

OPINION AND ORDER
This matter is before the Court on two discovery disputes: (1) Plaintiff’s request to depose
Bradley Jacobs, the CEO of Defendant XPO Logistics, Inc. (“XPO”), along with his Chief of Staff,
Catherine Friedman; and (2) XPO’s request for unredacted versions of Plaintiff’s Credit
Committee meeting minutes. (See Docs. 180, 181).
For the reasons that follow, Plaintiff’s request to depose Mr. Jacobs and Ms. Friedman is
GRANTED. Neither deposition shall exceed four (4) hours, and Plaintiff must tailor them to be
as efficient as possible. The parties shall meet and confer and schedule these depositions to take
place within thirty (30) days of the date of this Opinion and Order. Further, XPO’s request for
Plaintiff’s unredacted meeting minutes is GRANTED. Plaintiff shall produce these documents
within fourteen (14) days of the date of this Opinion and Order.
Given these findings, the parties are ORDERED to meet and confer and file a proposed
revised case schedule within fourteen (14) days of the date of this Opinion and Order. The parties
should note that, absent good cause, the case schedule will not be extended beyond what is

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necessary to complete this additional discovery. Further, the dispositive motion deadline should
not change.
I.

BACKGROUND
This case stems from an alleged Ponzi scheme involving the financing of off-the-road

(“OTR”) tires retailing for roughly $100,000 each. (See generally Doc. 144). While the subject
of the alleged scheme—giant, expensive tires—may be unusual, its basic premise is not. The
alleged perpetrator, Jason Adkins, held his numerous entities out as tire brokerage companies. (Id,
¶ 42). Adkins would approach potential investors or lenders to invest in his companies or finance
lucrative tire deals with the promise of a high return on investment. (Id.).
In March 2016, Plaintiff entered such a deal with Adkins’ company, Defendant Landash
Corporation (“Landash”), fronting nearly 2.5 million dollars to fund the purchase of 36 tires. (Id.,
¶¶ 46–47).

Before closing, however, Plaintiff performed some due diligence.

One of its

representatives visited the XPO warehouse in Houston, Texas (the “Warehouse”) where the OTR
tires were to be stored. (Id., ¶ 49). Warehouse manager, Defendant Afif Baltagi, showed him the
vacant storage space for Plaintiff’s 36 tires upon arrival. (Id.). In April 2016, Defendant Baltagi
represented that Plaintiff’s tires had arrived. (Id., ¶ 65).
Plaintiff says that was a lie. (Id., ¶ 68). Defendant Baltagi did store a set of tires in the
Warehouse, but they were tires that Adkins had acquired earlier and that belonged to someone
else. (Id.). And Adkins and his alleged co-conspirators did this again and again, telling different
investors and lenders that those same tires were theirs. (Id.). Ultimately, Landash defaulted on its
obligations, and Adkins and his co-conspirators allegedly divvied up Plaintiff’s investment. (Id.,
¶ 78).
Numerous lawsuits like this one ensued. Pertinent here, Defendant XPO unequivocally

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claims that it was unaware of the scheme and that Defendant Baltagi acted alone. (See generally
Doc. 143). And much of the discovery in this case has focused on that. (See, e.g., Doc. 181-1).
In the spring of 2020, the parties exchanged supplemental documents after the Court
granted yet another extension. (See generally Docs. 180, 181). As part of the production, Plaintiff
received email correspondence between Defendant Baltagi and Star Funding, Inc. (“Star
Funding”), an early victim of Adkins’ alleged scheme. (See generally Docs. 180-2, 180-3). Mr.
Jacobs and his assistant, Ms. Friedman, were among the few included on these emails. (See id.).
Plaintiff now seeks to depose them both. (See generally Doc. 180). As for XPO’s request, XPO
learned at Plaintiff’s reconvened 30(b)(6) deposition that Plaintiff had a Credit Committee that
met monthly to discuss loans. (Doc. 181-1 at 1). Plaintiff produced the minutes with substantial
redactions. (See generally Doc. 181-1). XPO now seeks unredacted versions. (See id.).
II.

DISCUSSION
The Court turns first to Plaintiff’s deposition requests before turning to XPO’s document

request.
A. Depositions
Plaintiff seeks to depose two individuals, including Bradley Jacobs, XPO’s CEO. And
while courts rarely prohibit parties from deposing individuals, different considerations apply when
that individual is a corporate officer like Mr. Jacobs. Plaintiff “must show that [Mr. Jacobs] has
unique personal knowledge of the matters at issue and that there are no less burdensome ways of
obtaining the same information.” Curtis v. Alcoa, Inc., No. 3:06-CV-448, 2008 WL 11342549, at
*3 (E.D. Tenn. Aug. 27, 2008) (collecting cases).
Plaintiff has met its burden. Plaintiff relies on an email thread as evidence of Mr. Jacobs’
personal knowledge. In April 2015, Jo-Ann Erhard of Star Funding emailed Defendant Baltagi

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regarding the status of Star Funding’s 36 tires at the Warehouse. (See Doc. 180-2). Unable to get
a direct answer from Mr. Baltagi, Ms. Erhard grew suspicious about the tires’ whereabouts. (See
id.). The correspondence grew increasingly tense, and on May 6, 2016, Mr. Jacobs’ assistant, Ms.
Friedman, forwarded the email chain to Mr. Baltagi’s supervisor, Dominick Muzi. (See Doc.
180- 3). Mr. Muzi then wrote to Defendant Baltagi, “Please note Brad [Jacobs] is on this email
chain and asked me to get involved. Can you please resolve this!!!” (See Doc. 180-2). Defendant
Baltagi responded curtly, “I am.” (Id.). Another of his supervisors, Ian Oliver, Vice President of
Operations, asked Defendant Baltagi whether he was “responding to Jo-Ann’s questions.” (Id.).
Seemingly exasperated by Mr. Muzi’s and Oliver’s questioning, Defendant Baltagi wrote back,
“Come on guys really?”

(Id.).

Mr. Oliver responded, “Afif when Brad [Jacobs] starts

question[ing] us we have to question you. We need to be able to provide answers.” (Id.).
Plaintiff says that these emails show that “Mr. Jacobs possesses knowledge regarding
issues pertaining to Mr. Baltagi’s activities and the unauthorized release of tires that XPO was
holding for Star Funding, Inc.” (Doc. 180 at 2; see also Doc. 180-1).
XPO, for its part, relies on caselaw establishing that it is generally more difficult to depose
a CEO. (See generally Doc. 181 at 1–2). That is true, but the heightened standard aims to prevent
fishing expeditions or harassment. Bluewater Music Servs. Corp. v. Spotify USA Inc., No. 3:17CV-01051, 2019 WL 6904599, at *2–3 (M.D. Tenn. Mar. 25, 2019) (citations omitted). For
example, a party may not depose a CEO simply to probe his or her background or “foundational”
knowledge about the company. Id. at *3 (denying plaintiff’s request to depose Spotify’s CEO
regarding “foundational information related to the issues in these cases”).
But that is not what Plaintiff seeks to do. To the contrary, the emails suggest that Mr.
Jacobs read the correspondence, developed concerns, and raised those concerns with Defendant

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Baltagi’s supervisors. (See generally Docs. 180-2, 180-3). Plaintiff has a right to ask Mr. Jacobs
about these emails and his knowledge of Defendant Baltagi’s actions. See Conti v. Am. Axle &
Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (noting that courts deny or limit depositions of
corporate officers who had “little if any interaction” with the individuals involved in the case).
XPO additionally asserts that the members of its Global Forwarding Team have already
been deposed, making Plaintiff’s request unduly burdensome and disproportionate to the needs of
the case (Doc. 181 at 2). Yet, the Court need not “credit [that] bald assertion . . ., especially when
[Mr. Jacobs’] deposition could provide information critical to [Plaintiff’s] claims.” Conti, 326 F.
App’x at 907 (reversing district court’s decision prohibiting deposition of CEO). While the Court
agrees with XPO that Plaintiff should have noticed Mr. Jacobs’ deposition months ago, XPO does
not explain how this timing prejudices it. (See Doc. 181 at 2). Indeed, XPO, too, is currently
engaging in supplemental discovery.
In sum, Plaintiff has met its burden to show Mr. Jacobs’ potential “knowledge of
information relevant to [Plaintiff’s] claims.” Conti, 326 F. App’x at 907. While Plaintiff need not
satisfy the same standard to depose Ms. Friedman, Plaintiff has shown that she may be deposed,
too. Plaintiff’s request is, therefore, GRANTED.
Because, however, Plaintiff identifies no other basis supporting Ms. Friedman’s or Mr.
Jones’ knowledge apart from the Star Funding emails, the Court expects Plaintiff’s questions to be
tailored accordingly. Said differently, the subject matter supporting Plaintiff’s request is narrow—
so, too, should be the depositions. Accordingly, the Court limits each deposition to four (4)
hours. Less time will likely be necessary should Plaintiff, as directed, structure each deposition
to be as efficient as possible. See, e.g., E.E.O.C. v. Cintas Corp., No. 04-40132, 2015 WL
1954476, at *3 (E.D. Mich. Apr. 29, 2015) (permitting four-hour deposition of Cintas CEO). The

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parties shall meet and confer and schedule these depositions to take place within thirty (30) days
of the date of this Opinion and Order.
B. Redacted Meeting Minutes
Plaintiff produced hundreds of pages of minutes from its Credit Committee meetings. (See
Doc. 18-1 at 56–206). The documents, however, are heavily redacted. (See id.). Plaintiff contends
that the redactions are proper as they have nothing to do with this lawsuit or XPO’s discovery
requests. (Doc. 180 at 1). Yet “‘[i]t is a rare document that contains only relevant information.’”
Ewalt v. GateHouse Media Ohio Holding II, Inc., No. 2:19-CV-4262, 2020 WL 4782860, at *2
(S.D. Ohio Aug. 18, 2020) (quoting Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441,
451 (D. Minn. 2011)). And the Federal Rules of Civil Procedure “provide no support for the
redaction of irrelevant information.” Ewalt, 2020 WL 4782860, at *2 (citing Bartholomew, 278
F.R.D. at 451 (“Redaction is an inappropriate tool for excluding alleged irrelevant information
from documents that are otherwise responsive to a discovery request.”)).
As XPO notes, the purportedly irrelevant information from the meeting minutes “‘may be
highly useful to providing context for the relevant information.’” Ewalt, 2020 WL 4782860, at *2
(quoting Bartholomew, 278 F.R.D. at 451). Thus, “[t]he Court sees no compelling reason for
[Plaintiff] not to disclose information solely on the grounds that [it] thinks the non-disclosed
materials are not relevant or responsive where that information appears in a document that contains
otherwise relevant or responsive information.” ArcelorMittal Cleveland Inc. v. Jewell Coke Co.,
L.P., No. 1:10-CV-00362, 2010 WL 5230862, at *3 (N.D. Ohio Dec. 16, 2010) (citing Orion
Power Midwest, L.P. v. Am. Coal Sales Co., No. 2:05-CV-555, 2008 WL 4462301, at *2 (W.D.
Pa. Sept. 30, 2008) (“There is no express or implied support [in the Federal Rules] for the insertion
of another step in the process . . . in which a party would scrub responsive documents of non-

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responsive information.”)); see also Tween Brands Inv., LLC v. Bluestar All., LLC, No. 2:15-cv2663, 2015 WL 6955177, at *1 (S.D. Ohio Nov. 10, 2015) (compelling production of unredacted
documents where defendant had initially redacted portions of documents it characterized as
“highly confidential” and “not relevant”).
XPO’s request for unredacted versions of Plaintiff’s meeting minutes is GRANTED as a
result. Plaintiff shall produce these documents within fourteen (14) days of the date of this Opinion
and Order.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s request to depose Mr. Jacobs and Ms. Friedman is

GRANTED. Neither deposition shall exceed four (4) hours, and Plaintiff must tailor them to be
as efficient as possible. The parties shall meet and confer and schedule these depositions to take
place within thirty (30) days of the date of this Opinion and Order. Further, XPO’s request for
Plaintiff’s unredacted meeting minutes is GRANTED. Plaintiff shall produce these documents
within fourteen (14) days of the date of this Opinion and Order.
Given these findings, the parties are ORDERED to meet and confer and file a proposed
revised case schedule within fourteen (14) days of the date of this Opinion and Order. The parties
should note that, absent good cause, the case schedule will not be extended beyond what is
necessary to complete this additional discovery, and the Court intends for the dispositive motion
deadline to remain the same.
IT IS SO ORDERED.
Date: January 21, 2021

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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