Tocci v. Antioch University et al

Filing 101

ORDER in response to Plaintiff's letter to the undersigned dated October 26, 2013, and received October 29, 2013 (Doc. No. 100). Signed by Magistrate Judge Michael R Merz on 11/1/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTHONY A. TOCCI,
Plaintiff,

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vs

:

Case No. 3:07-cv-314
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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ANTIOCH UNIVERSITY, et al.,

Defendants.

:

ORDER

This case is before the Court on Plaintiff’s letter to the undersigned dated October 26,
2013, and received October 29, 2013 (Doc. No. 100).
Plaintiff acknowledges receipt of the Order to the Clerk to furnish him with what he calls
the “Mediation Completion Form,” but asserts he has never received it “and time is of the
essence.” (PageID. 1220). The docket reflects that, as ordered, the Clerk mailed a copy to
Plaintiff on October 15, 2013, and the mail has not been returned.

The Clerk is hereby

ORDERED to mail another copy of the Mediator’s Report (Doc. No. 47) to Plaintiff and docket
the mailing.
Plaintiff next asserts
I have never received the Documents that you submitted in Doc.
No. 77. Please have the Court Clerk forward me a copy. If I have
to pay for these documents, please have some one let me know of
the cost. I will be happy to pay for them.
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Id.
The referenced docket entry is my notice to all parties that, pursuant to the subpoena
duces tecum served on me for the hearing on Defendants’ Motion to Enforce Settlement, I
delivered all the responsive documents to Judge Rice’s judicial assistant. This was because I
expected to participate in that hearing by video conference from the Administrative Office of
United States Courts where I was scheduled to be in a meeting at the time of the hearing. The
docket reflects that all of the exhibits introduced in evidence at the hearing are in the custody of
the Clerk of Courts. Whether or not the documents I delivered were entered in evidence I do not
know, but Plaintiff should know since he participated in the hearing. Plaintiff may obtain copies
of any of those documents by direct request to the Clerk of Courts in the same way any litigant
could, which is not by asking a judicial officer to do his research for him. The Division Manager
for the Dayton location of Court, Mr. Jeffrey Garey, may be reached by telephone at 937-5121421.
Mr. Tocci next complains of my use of a double negative in response to his prior letter
when I stated "There are no documents responsive to the Plaintiff's request which were not
among the [sic; “those” in the original, see PageID 1219] delivered." To clear up Mr. Tocci’s
stated confusion, I further state that all documents in my possession at the time I was served with
the subpoena which were responsive to the subpoena were delivered to D.J. Vinolus, Judge
Rice’s Judicial Assistant, on September 8, 2011, and there are no documents described in Mr.
Tocci’s prior letter request (Doc. No. 98) other than those I delivered to Ms. Vinolus.
Mr. Tocci then propounds to me an interrogatory: “Did you disclose to anyone, by any
means, any information, used or gained in the Mediation?” Mr. Tocci states “I should be entitled
to this information” (PageID 1220), but he cites no authority for obtaining it. Final judgment has

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been entered in this case and it is pending on appeal to the Sixth Circuit. There is no authority in
the Federal Rules of Civil Procedure for obtaining post-judgment discovery from a mediator. I
therefore decline to answer the question. (In the alternative, should some higher court disagree
with my position in this matter, the answer to Mr. Tocci’s question is “No except as I testified at
the hearing on enforcement of the settlement.”)
Mr. Tocci proceeds to instruct me:
You should be aware that the moment you signed your Mediation
Completion Form you were required to destroy all records of the
Mediation. The only paperwork that you could forward to the court
or a judge was a Signed Agreement. (which you did not). One of
the foundational cornerstones of Mediation is that any information
gained in the mediation process (in any form) CANNOT BE
USED FOR DISCOVERY.

Once again, Mr. Tocci cites no authority for these propositions. Certainly S. D. Ohio Civ. R.
16.3 which governs mediation in this Court, both now and at the time of the mediation in this
case (July 12, 2010) contains no obligation imposed on a mediator to destroy “all records of the
mediation.”
Rule 16.3 does have an extensive confidentiality provision. To protect the parties’ rights
under that provision, the undersigned filed a Motion in Limine (Doc. No. 76) at the time this case
was set for hearing on Defendants’ Motion to Enforce. Mr. Tocci filed no response to that
Motion and no objection to my testifying during the hearing. Any objection made now is
obviously not a contemporaneous objection but in fact more than two years late. As to the

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propriety of filing a the Mediator’s Report stating that the case has settled, that is specifically
authorized by S. D. Ohio Civ. R. 16.3(c)(3)(A)(i).

November 1, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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