[Cite as Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., 2013-Ohio-5319.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99867


                     EBERHARD ARCHITECTS, L.L.C.
                                                  PLAINTIFF-APPELLEE

                                                     vs.

            SCHOTTENSTEIN, ZOX & DUNN CO., ETC.
                                                  DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-781105

             BEFORE:           Blackmon, J., Stewart, A.J., and McCormack, J.

             RELEASED AND JOURNALIZED:                              December 5, 2013
ATTORNEYS FOR APPELLANT

Jay E. Krasovec
Jonathon W. Groza
Ice Miller, L.L.P.
600 Superior Avenue East
Suite 1701
Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE

Rick L. Ferrara
The Lindner Law Firm, L.L.C.
2077 East 4th Street
Second Floor
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
      {¶1} Appellant Schottenstein, Zox & Dunn Co., d.b.a. Ice Miller, L.L.P. (“SZD”)

appeals the trial court’s denial of its motions for a protective order and assigns the

following two errors for our review:

      I. The trial court erred in denying defendant-appellant’s February 25, 2013
      [sic] motion for a protective order.

      II. The trial court erred in denying defendant-appellant’s April 3, 2013

      motion for protective order regarding its corporate representatives’

      depositions and to quash invalid subpoenas.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

                                        Facts

      {¶3} On April 23, 2012, appellee Eberhard Architects, L.L.C. (“Eberhard”) filed

a complaint against SZD alleging breach of contract, unjust enrichment, and prejudgment

attachment under R.C. 2715.01. Underlying the allegations was Eberhard’s contention

that it had performed work related to SZD’s new office space, which SZD refused to pay.

SZD argued that no contract was entered into with Eberhard, and the work performed by

Eberhard was to entice SZD to retain Eberhard.

      {¶4} SZD failed to provide documents that Eberhard requested during discovery.

Eberhard, therefore, filed a motion to compel on October 5, 2012. In response, SZD

filed a motion for a protective order and memorandum in opposition to the motion to

compel, arguing that the information requested was “proprietary and confidential.”
Eberhard filed a brief in opposition to the protective order. On February 5, 2013, the

trial court denied the protective order stating:

       Plaintiff’s motion to compel is granted. Defendant shall produce the
       requested items in request for production of document numbers 1-5 and
       respond to interrogatory numbers 8-11. Defendant’s motion for protective
       order is denied.

Journal Entry, February 5, 2013.

       {¶5} On February 27, 2013, SZD filed a second motion for a protective order.

In its motion it stated it would provide the documents and information ordered by the

court, but desired to have the documents placed under seal because it maintained the

documents contained “confidential and proprietary” information. Eberhard opposed the

motion arguing (1) the court had already concluded the information was not confidential,

(2) SZD failed to state why the lease was confidential and failed to request an in camera

inspection, and (3) the proposed protective order was overbroad and would prejudicially

affect the management of the case because it would apply to over 1,200 documents.

       {¶6} While this motion was pending, Eberhard attempted to serve a subpoena on

several corporate representatives affiliated with SZD. In response, SZD filed a motion

for a protective order regarding the taking of its corporate representatives’ depositions

and a motion to quash the subpoenas. SZD argued the protection order was needed to

protect confidential and privileged information pending the trial court’s decision on the

second protection order. SZD also argued that the subpoenas were invalid because (1)

the subpoenas provided only two business days notice for the scheduled depositions and
(2) were not served by an appropriate person pursuant to Civ.R. 45(B) because the

process server was not a person appointed by the court.

       {¶7} Eberhard responded by filing a brief in opposition to the motion to quash

and also filed a second motion to compel along with a motion to show cause and a request

for sanctions for the failure to appear for a deposition.

       {¶8} On April 22, 2013, the trial court conducted a hearing on the pending

motions.    The trial court concluded at the hearing that the documents were not

confidential. The trial court then instructed as follows regarding the depositions:

       And, Mr. Ferrara [counsel for Eberhard], I don’t expect you asking anything
       that’s embarrassing or that’s infringing upon their ability to be an effective
       law firm and market themselves.

       Your client says he wants money because he’s — you should be focusing on
       those issues: Who did he talked to; when did he talk to; what was his
       expectation; find out what concrete work, if any, was done; did they ever
       receive it. You know, things that are foundational, not how much profit
       were they expecting; you know, how many offices extra did they build out,
       all that. You know, because by the time they moved, your client was out of
       the picture. So the damage was already done, if any. All right.

       So the other things that they’re worried about finding out about, partner
       compensation and what their expected fees are and their place of market
       share, that really doesn’t have much to do with this. This is — as I said
       earlier, this would be the same. If this was going to be a storefront selling
       used clothing and one party got something and then they used somebody
       else, all right, did they use the same designs? Did they lead somebody on?
       That’s what we’re here about, not what that business’s projected sales were
       or who was involved in capitalizing the business. I mean, that doesn’t
       matter.

       We need to know who the decision makers were and whether there was any
       agreement or whether there was any unjust enrichment, all that, you know.
       That’s the focus, not how they expected to take the Cleveland market by
       storm or how they were faring, what their reasons were for the merger. * * *
       [Y]ou don’t really need to get into the dollars and cents to find out what
       they were thinking and what their needs were going to be.

Tr. 26, 27.

       {¶9} The trial court also encouraged them to conduct the depositions at the court

so that the court could immediately rule on any issues of confidentiality. The trial court

subsequently entered a judgment denying the motions for protective orders, the motion to

quash, and the motion for sanctions.

                       Protective Order Regarding Documents

       {¶10} In its first assigned error, SZD argues the trial court erred by denying its

motion for a protective order in which it requested that the documents it gave to Eberhard

be placed under seal. SZD contends information regarding the lease would necessarily

contain confidential information regarding the negotiation of the merger, which occurred

during the time the lease was being negotiated.1

       {¶11} At the outset, we will address Eberhard’s contention that SZD’s appeal was

not timely filed because the first protection order addressed the same issues contained in

SZD’s second and third motions for protection orders. Eberhard contends that the appeal

should have been filed when the trial court denied the first protection order. Our review

of the motions shows they concern different subject matters.


       1
        Eberhard contends the lease and related information regarding architectural
work was relevant to its case because Eberhard provided SZD with services
regarding these subjects and contended that SZD used the information to capitalize
on its bidding process regarding its new lease.
       {¶12} In its first motion for a protection order, SZD refused to provide Eberhard

with requested documents and refused to answer several interrogatories. After the court

denied the first motion, SZD provided Eberhard with the information with the reservation

to mark them confidential. SZD then filed the second motion for a protection order

requesting that the documents be marked confidential so that only the litigants and their

attorneys would be able to review the information. In its third motion for a protection

order, SZD requested that the deposition testimony be considered confidential. Because

of the differences between the redress sought in the motions, we conclude that the court’s

ruling on the first protection order did not address the same issues in the second and third

motions. Therefore, SZD filed a timely appeal from the trial court’s denial of its second

and third motions.

       {¶13} We review the trial court’s decision to deny a motion for a protective order

for an abuse of discretion. Li v. Olympic Steel, Inc., 8th Dist. Cuyahoga No. 97286,

2012-Ohio-603, ¶ 6, citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 592,

1996-Ohio-265, 664 N.E.2d 1272. An abuse of discretion “‘implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404

N.E.2d 144 (1980).     Courts apply a balancing test in determining whether to grant

protective orders, weighing the competing interests to be served by allowing discovery to

proceed against the harm that may result. Arnold v. Am. Natl. Red Cross, 93 Ohio
App.3d 564, 576, 639 N.E.2d 484, 491-492 (8th Dist.1994), citing Doe v. Univ. of

Cincinnati, 42 Ohio App.3d 227, 231, 538 N.E.2d 419 (10th Dist.1988).

      {¶14} “[T]he burden of showing that testimony or documents are confidential or

privileged rests upon the party seeking to exclude it.” Covington v. The MetroHealth

Sys., 150 Ohio App.3d 558, 2002-Ohio-6629, 782 N.E.2d 624, ¶ 24 (10th Dist.). Merely

claiming the information is confidential is insufficient to sustain the burden. Ro-Mai

Industries   v.    Manning   Properties,   11th   Dist.   Portage   No.   2009-P-0006,

2010-Ohio-2290, ¶ 28.

      {¶15} In the instant case, SZD stated that the documents contained confidential

information because at the time it entered into the new lease, it was also negotiating a

merger with another law firm. The court stated several times that it did not understand

what was “unique” or “confidential” regarding the documents and also stated that

“nobody’s asked me to look at them, and we’ve been available.” (Tr. 11.) The court

verified with Eberhard that none of the documents concerned the attorneys’ salaries or

financial books.

      {¶16} Unfortunately, because SZD never requested an in camera inspection of the

documents, there is no evidence in the record, beyond SZD’s bald assertions, that the

documents include confidential or proprietary information. Thus, the trial court did not

abuse its discretion by denying the motion because SZD failed to sustain its burden to

show that the documents contained confidential and proprietary information. See Pyko v.

Frederick, 25 Ohio St.3d 164, 166, 495 N.E.2d 918 (1986) (by failing to request an in
camera review of the file, the movant failed to sustain its burden of showing the file

contained information relevant to the attorney-client privilege);        Hope Academy

Broadway Campus v. White Hat Mgt., L.L.C., 10th Dist.           Franklin No. 12AP-116,

2013-Ohio 911 (because the trial court did not have an opportunity to review the

documents that appellant claimed were confidential and proprietary, it did not abuse its

discretion by denying the motion for a protective order because appellant did not meet its

burden.) In fact, our review is limited because we, like the trial court, have nothing

before us to determine if the documents contained confidential and proprietary materials.

Accordingly SZD’s first assigned error is overruled.

                  Protective Order Regarding Deposition Testimony

       {¶17} In its second assigned error, SZD argues the trial court erred by denying its

motion for a protective order in which it argued the deposition testimony of the firm

representatives should be marked confidential and sealed. SZD also argues the trial

court erred by refusing to quash the subpoenas.

       {¶18} SZD essentially sets forth the same arguments regarding the deposition

testimony as it did for the denial of the motion for a protective order regarding the

documents. As we stated above, the record does not show that SZD met its burden

regarding the confidential and proprietary information it seeks to protect. Thus, the

court’s denial of the motion was not an abuse of discretion.

       {¶19} Moreover, the court stated on the record as follows:
      Well, I’m denying the protective order. There will be an exception. If you
      think there is something that is so significant that it can’t be breathed
      outside of the deposition room, submit it in camera and make a whole list.

Tr. 22. Thus, the court left open an avenue for SZD to contest specifically which part of

the testimony should be sealed.      The court also suggested the parties conduct the

depositions at the court, which would allow the court to immediately rule on any

confidentiality concerns. We conclude the trial court did not abuse its discretion in

handling the matter.

      {¶20} SZD also argues the trial court erred by not quashing the subpoenas because

they were not served in a timely manner and were not served by a process server

appointed by the court as required by Civ.R. 45.

      {¶21} Our review of the record shows that SZD was served both by subpoena

pursuant to Civ.R. 45 and by notice of examination pursuant to Civ.R. 30(B).         The

record shows that the notice pursuant to Civ.R. 30(B) was served on March 21, 2013, for

a deposition date of April 4, 2013.       This two-week notice was reasonable.       The

subpoenas made the same requests as contained within the notice of examination,

therefore, SZD should not have been prejudiced by the late service of process regarding

the subpoenas because it was already provided notice of the deposition date.

      {¶22} We also conclude the subpoenas were served by a court-appointed process

server. In response to SZD’s motion to quash, Eberhard filed a motion in opposition to

which it attached a judgment entry by the administrative judge entered on January 13,

2013, appointing the Cefaratti Group to serve as official process servers for the court.
An employee of the Cefaratti Group served the subpoenas.            Moreover, even if the

subpoenas were not served by a court-appointed process server, SZD was served with the

Civ.R. 30(B) notice of examination.

       {¶23} Also attached to the motion in opposition were copies of emails wherein

counsel for Eberhard attempted to comply with Loc.R. 13(B)(1), Civ.R. 26, and Civ.R.

30, by requesting several times for a date that was compatible with the witnesses’

schedules. Due to SZD’s failure to provide a date, Eberhard notified SZD by an email

sent on March 14, 2013, that if it did not provide a date, Eberhard would schedule the

deposition without input from SZD.        We conclude the trial court did not abuse its

discretion by refusing to quash the subpoenas; Eberhard complied with the local and

civil rules. SZD’s second assigned error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga Court of Common

Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, A.J., and
TIM McCORMACK, J., CONCUR
