[Cite as DeSalle v. Wal-Mart Stores, Inc., 2016-Ohio-5096.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY



JAMES DESALLE, ET AL.,

        PLAINTIFFS-APPELLEES,                                 CASE NO. 5-16-02

        v.

WALMART STORES INC., ET AL.,
                                                              OPINION
        DEFENDANTS-APPELLEES.

[DEWAYNE “DEWEY” BEACH - APPELLANT].



                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2015 CV 00277

                       Judgment Reversed and Cause Remanded

                              Date of Decision: July 25, 2016




APPEARANCES:

        William E. Clark for Appellant

        Andres Benchic for Appellees, James DeSalle, et al.
Case No. 5-16-02


SHAW, P.J.

       {¶1} Appellant, Dwayne “Dewey” Beach, appeals the January 19, 2016

judgment and order of the Hancock County Court of Common Pleas, overruling

his motion to quash a subpoena duces tecum.

                           Facts and Statement of the Case

       {¶2} Beach is a non-party witness in a Connecticut Superior Court action

initiated by Plaintiffs, James DeSalle et al., against Defendants, Wal-Mart Stores

Inc., et al. in January 2011. In their complaint, Plaintiffs alleged that a tire

manufactured by Defendant Cooper Tire and Rubber Company caused a

catastrophic accident resulting in injuries to Plaintiffs. Through the deposition of

another Cooper Tire designated witness, Plaintiffs determined that Beach, a retired

Cooper Tire employee, could provide testimony relevant to Plaintiffs’ claims in

the Connecticut lawsuit.

       {¶3} On June 30, 2015, Plaintiffs filed an “Application Pursuant to ORC

§2319.08 and §2319.09” in the Hancock County Court of Common Pleas in Ohio,

requesting that court order the Hancock County Clerk of Courts to “issue and/or

authorize the filing of a subpoena duces tecum” directing Beach, a Hancock

County resident, to produce certain records and appear for a deposition in Ohio.

Plaintiffs attached an order from the Connecticut Superior Court granting their




                                         -2-
Case No. 5-16-02


motion for a “Commission” for the deposition of Beach in the Connecticut

lawsuit.

       {¶4} On July 2, 2015, the Hancock County Common Pleas Court granted

the application and ordered the Hancock County Clerk of Courts to issue a

subpoena duces tecum requiring Beach to appear for a deposition at a specified

location in Toledo, Ohio, on July 15, 2015, and to produce the requested

documents.

       {¶5} On July 6, 2015, the Hancock County Clerk of Courts issued the

subpoena, which was personally served upon Beach on July 9, 2015.

       {¶6} On July 13, 2015, Beach filed a motion to quash the subpoena in the

Hancock County Common Pleas Court asserting that he had not received notice of

the application for the subpoena in either the Connecticut Court or the Hancock

County Common Pleas Court and thus was not able to oppose the issuance of the

subpoena in the Ohio court.     Beach cited an opinion from the Ninth Ohio

Appellate District, Lampe v. Ford Motor Company, and argued that the Hancock

County Common Pleas Court retained the authority under R.C. 2319.09, Ohio’s

codification of the Uniform Foreign Depositions Act, to examine the facts

underlying the subpoena and to quash the subpoena when necessary instead of

simply “rubber stamping” the foreign court’s discovery request. 9th Dist. Summit




                                      -3-
Case No. 5-16-02


No. C.A. 19388, *3 (2000)(citing In re Kirkland & Ellis v. Chadbourne & Parke,

L.L.P, 670 N.Y.S.2d 753,756 (N.Y. Sup. Ct. 1998).

      {¶7} In an accompanying affidavit, Beach explained that he retired from

Cooper Tire in 2008 and claimed that “[r]eceiving a subpoena for deposition less

than five business days prior to being required to appear and being required to

interrupt my retirement to appear in a case which I have no knowledge, no

documents from which to be able to refresh my recollection and gain any

knowledge creates an undue hardship on me and interferes with my retirement.”

(Doc. No. 15 at Ex. A, ¶ 7). Thus, Beach claimed the subpoena subjected him to

an undue burden and sought the Hancock County Common Pleas Court to quash

the subpoena on that basis. See Civ.R. 45(C)(3)(d).

      {¶8} Beach also submitted a “Statement of Counsel” indicating that his

counsel attempted to resolve the undue burden issue with Plaintiffs’ counsel prior

to filing the motion to quash the subpoena under Civ.R. 45(C)(3)(d). See Civ.R.

45(C)(4).

      {¶9} In response, Plaintiffs filed a memorandum opposing Beach’s motion

to quash the subpoena and relied upon an opinion from the Eighth Ohio Appellate

District, Fischer Brewing Co. v. Flax, stating “[w]e do not view the court’s power

under R.C. 2319.09 as extending any further than enforcing the implementation of

the foreign discovery order.”     138 Ohio App.3d.92, *96 (8th Dist. 2000).


                                       -4-
Case No. 5-16-02


Plaintiffs requested the Hancock County Common Pleas Court overrule Beach’s

motion to quash the subpoena on the basis that the Ohio court lacked the authority

to consider the facts underlying the subpoena.

       {¶10} Beach responded by citing an opinion from this Court affirming an

Ohio court’s decision to quash a subpoena issued by an Ohio Clerk of Courts in

accordance with a discovery request issued by a California court and finding no

violation of R.C. 2319.09 in the Ohio court’s exercise of its authority to review

and quash the subpoena under the Ohio Rules of Civil Procedure.               In re

Deposition of Turvey, 3d Dist. Van Wert No. 15-02-07, 2002-Ohio-6008, ¶ 9;

Civ.R. 45.

       {¶11} On January 19, 2016, the Hancock County Common Pleas Court

issued a decision overruling Beach’s motion to quash the subpoena. The court

explained that it found the “reasoning in the Eighth District to be more persuasive.

R.C. 2319.09 does not grant the authority to quash, as Deponent seeks, while Civil

Rule 45 specifically authorizes the granting of a motion to quash by the issuing

court, which is the Connecticut Superior Court. The Court concludes that this

Court does not have the authority to quash the subpoena issued by the Connecticut

court.” (Order Jan. 19, 2016 at 3).

       {¶12} Beach filed this appeal, asserting the following assignments of error.




                                        -5-
Case No. 5-16-02


                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN HOLDING THAT IT HAD
       NO AUTHORITY UNDER R.C. 2319.09 TO QUASH A
       SUBPOENA.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN FAILING TO FOLLOW
       THE HOLDING OF IN RE: DEPOSITION OF TURVEY, 3RD
       DIST., VAN WERT NO. 15-02-07, 2002-OHIO-6008.

       {¶13} For ease of discussion, we elect to address the assignments of error

together.

       {¶14} On appeal, Beach argues that the Hancock County Common Pleas

Court erred in determining it had no authority under R.C. 2319.09 to review the

underlying merits of his motion to quash the subpoena based upon his claim that

compliance with the subpoena subjected him to an undue burden. Beach also

asserts that the trial court’s decision is in direct contravention with precedent from

this Court.

                                Standard of Review

       {¶15} Generally, an appellate court applies an abuse of discretion standard

when reviewing a trial court’s decision to quash a subpoena. State v. Blair, 3d

Dist. Marion No. 9-12-14, 2013-Ohio-646, ¶ 44. However, because this case

“requires the interpretation of statutory authority, which is a question of law, our

review is de novo.” Riedel v. Consol. Rail Corp., 125 Ohio St. 3d 358, 359, 2010-


                                         -6-
Case No. 5-16-02


Ohio-1926, ¶ 6, citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 8.

Therefore, we review the decision without deference to the trial court’s

interpretation. See Dawson v. Dawson, 3d Dist. Union Nos. 14-09-08, 14-09-10,

14-09-11, 14-09-12, 2009-Ohio-6029, ¶ 45. Our review begins with the plain

language of the statute at issue. Section 2319.09 of the Revised Code codifies the

Uniform Foreign Depositions Act, which provides:

      Whenever any mandate, writ, or commission is issued out of any
      court of record in any other state, territory, district, or foreign
      jurisdiction, or whenever upon notice or agreement it is required
      to take the testimony of a witness in this state, witnesses may be
      compelled to appear and testify in the same manner and by the
      same process and proceedings as are employed for the purpose of
      taking testimony in proceedings pending in this state.

(Emphasis added.)

      {¶16} Rule 45 of the Ohio Rules of Civil Procedure governs the process for

using subpoenas and section (C) states the following regarding a party’s request to

quash or modify a subpoena.

      (3) On timely motion, the court from which the subpoena was
      issued shall quash or modify the subpoena, or order appearance
      or production only under specified conditions, if the subpoena
      does any of the following:

      (a) Fails to allow reasonable time to comply;

      (b) Requires disclosure of privileged or otherwise protected
          matter and no exception or waiver applies;

      (c) Requires disclosure of a fact known or opinion held by an
          expert not retained or specially employed by any party in

                                        -7-
Case No. 5-16-02


            anticipation of litigation or preparation for trial as
            described by Civ.R. 26(B)(5), if the fact or opinion does not
            describe specific events or occurrences in dispute and
            results from study by that expert that was not made at the
            request of any party;

       (d) Subjects a person to undue burden.

       (4) Before filing a motion pursuant to division (C)(3)(d) of this
       rule, a person resisting discovery under this rule shall attempt to
       resolve any claim of undue burden through discussions with the
       issuing attorney. A motion filed pursuant to division (C)(3)(d) of
       this rule shall be supported by an affidavit of the subpoenaed
       person or a certificate of that person's attorney of the efforts
       made to resolve any claim of undue burden.

       (5) If a motion is made under division (C)(3)(c) or (C)(3)(d) of
       this rule, the court shall quash or modify the subpoena unless
       the party in whose behalf the subpoena is issued shows a
       substantial need for the testimony or material that cannot be
       otherwise met without undue hardship and assures that the
       person to whom the subpoena is addressed will be reasonably
       compensated.

                              Relevant Case Authority

       {¶17} There is scant Ohio authority addressing the scope of an Ohio court’s

jurisdiction over a subpoena issued pursuant to R.C. 2319.09. Moreover, of the

little guidance available, the Ohio appellate districts appear to have reached

differing conclusions in resolving the issue.

       {¶18} The Ninth Appellate District addressed this question in Lampe v.

Ford Motor Company, 9th Dist. Summit No. C.A. 19388 (Jan. 19, 2000). In that

case, the plaintiffs in a pending California civil case sought certain documents


                                         -8-
Case No. 5-16-02


from a non-party deponent, an independent research facility in Akron, Ohio, and

petitioned the Summit County Court of Common Pleas in Ohio to issue a

subpoena pursuant to R.C. 2319.09. Id. at *1. The Summit County Common

Pleas Court granted the petition and ordered the Summit County Clerk of Courts

to issue the subpoena. Id. The non-party deponent filed a motion to quash under

Civ.R. 45(C)(3). Id. The Summit County Common Pleas Court held a hearing

which resulted in its decision to overrule the motion to quash and modify the

foreign discovery request. Id. at *2.

       {¶19} The non-party deponent appealed arguing the trial court incorrectly

denied its motion to quash the subpoena. Id. The appeals court reversed in part

and discussed the scope of an Ohio court’s authority when ordering a subpoena to

be issued under R.C. 2319.09.

       R.C. 2319.09, which acknowledges the Uniform Foreign
       Depositions Act, permits Ohio courts to compel witnesses under
       a discovery order from a foreign jurisdiction “to appear and
       testify in the same manner and by the same process and
       proceedings as are employed for the purpose of taking
       testimony” in Ohio courts. The role of courts outside the forum
       state includes the authority to examine the facts underlying a
       subpoena and to quash when necessary. In re Kirkland & Ellis v.
       Chadbourne & Parke, L.L.P. (N.Y.Sup.Ct.1998), 176 Misc.2d 73,
       670 N.Y.S.2d 753, 756. See, also, In re Servco Corp. of America
       (1967), 1 Va.Cir. 54, 58, 1967 Va.Cir. LEXIS 1 at ----8. The
       receiving state is required to exercise its discretion in reviewing
       the subpoena and “may not simply rubber stamp the decision”
       of the foreign court. In re Kirkland & Ellis, supra.

Id. at *3.

                                        -9-
Case No. 5-16-02


        {¶20} Shortly after the decision in Lampe, the Eighth Appellate District

addressed the issue of the role of an Ohio court under R.C. 2319.09 in Fischer v.

Brewing, 8th Dist. Cuyahoga No. 76155, 138 Ohio App.3d 92 (2000). Fischer

involved two foreign orders requesting discovery be conducted in Ohio of the

deponent, an attorney for one of the parties named as counterclaim defendant in a

pending civil suit in the Superior Court of the District of Columbia, which

included the taking of a deposition and the inspection of the deponent’s files on a

personal computer. The party seeking the discovery filed its application in the

Cuyahoga County Ohio Court of Common Pleas for an order allowing discovery

pursuant to the District of Columbia Court’s orders. The deponent immediately

filed a motion to quash the subpoenas and motions for protective orders on the

basis of attorney-client privilege. Id. at *94. The Ohio court denied the motion to

quash and the motions for protective orders.1

        {¶21} The appeals court in Fischer examined the Ninth District’s holding

in Lampe and rejected the reasoning in that opinion. Specifically, the court in

Fischer expressed its view that an Ohio court’s authority to conduct discovery is

limited under R.C. 2319.09 which simply “ ‘gives the courts of this state the

authority to compel attendance and testimony at depositions taken in Ohio.’ A

component to this power to compel attendance is the authority to impose sanctions


1
 Although not clearly articulated by the majority opinion in Fischer, it appears that the Cuyahoga County
Clerk of Courts issued a subpoena in accordance with R.C. 2319.09. Fischer at *98 (Porter, J., concurring).

                                                  -10-
Case No. 5-16-02


if the deponent fails to attend a deposition.” Id. at *96, quoting E.I. DuPont de

Nemours & Co. v. Thompson, 29 Ohio App.3d 272, 274, (8th Dist. 1986).

        {¶22} The court continued to state that “[w]e do not view the court’s power

under R.C. 2319.09 as extending any further than enforcing the implementation of

the foreign discovery order. Principles of comity and full faith and credit prohibit

Ohio courts from countermanding otherwise valid discovery orders issued by

foreign courts. Our adherence to these legal precepts causes us to disagree with a

statement contained in Lampe v. Ford Motor Co. Lampe cited to In re Kirkland &

Ellis v. Chadbourne & Parke, L.L.P., for the proposition that ‘the role of courts

outside the forum state includes the authority to examine the facts underlying a

subpoena and to quash when necessary.’ This approach is not the law in New

York and should not be the law in Ohio.” Id. (internal citations omitted).2

        {¶23} The court in Fischer discussed whether an Ohio court has the

authority to quash a subpoena issued pursuant to R.C. 2319.09 and determined that


2
   We note that this approach is the current law in New York. In 2011, New York adopted the Uniform
Interstate Depositions and Discovery Act, which is codified under CPLR § 3119. Under the UIDDA,
“[d]iscovery authorized by the subpoena must comply with the rules of the state in which it occurs.” Hyatt
v. State Franchise Tax Board, 962 N.Y.S.2d 282, 293 [2d Dept. 2013]. “[M]otions to quash, enforce, or
modify a subpoena issued pursuant to the Act shall be brought in and governed by the rules in the discovery
state.”* (Id.; CPLR § 3119[d] and [e])(emphasis added). “Although the Uniform Act ‘requires minimal
judicial oversight since there is no need to present the matter to a judge in the discovery state before a
subpoena is issued,’ CPLR § 3119 expressly contemplates judicial review by providing a mechanism to
move for relief against the subpoena under the rules or statutes of New York.” In re Aerco Int’l, Inc., 964
N.Y.S.2d 900, 903 (Sup. Ct. 2013), citing Hyatt v. State Franchise Tax Board, 962 N.Y.S.2d at 292; CPLR
§ 3119[e]).

*We note that the UIDDA considers the “discovery state” to be the state where the witness to be deposed
lives—in this instance, Ohio.


                                                  -11-
Case No. 5-16-02


for the purposes of Civ.R. 45(C)(3) the language of the rule referring to “the court

from which the subpoena was issued” is the foreign court who granted the

discovery order in the underlying action—i.e., the District of Columbia court—not

the Ohio court where the clerk of courts issued the subpoena upon receiving an

order under R.C. 2319.09. Id.

          {¶24} In other words, the court in Fischer viewed the subpoena as being

“issued” by the foreign court and therefore conferring the authority to quash the

subpoena only to the foreign court, despite the fact that the subpoena was issued

by an Ohio clerk of courts and the Ohio court retained jurisdiction to compel the

deponent’s attendance by virtue of the subpoena and the use of sanctions. Thus,

the court in Fischer determined that “[g]iven the limited nature of the Ohio court’s

role in implementing the subpoena and issuing orders to ensure compliance with

the subpoena, we believe that court had no authority to rule on motions for a

protective order or a motion to quash that went to the heart of the subpoena.” Id.

at *97.

          {¶25} Notably, in a separate concurrence in Fischer, Judge Porter

expressed a different perspective than the majority on the Ohio court’s purported

limited role in supervising subpoenas under R.C. 2319.09. Judge Porter noted that

the subpoena was issued by use of the Ohio process on a nonparty witness to




                                        -12-
Case No. 5-16-02


implement the discovery order of the District of Columbia Superior Court

pursuant to R.C. 2319.09. Id. at *98. He further opined:

        I am not prepared to say, as the majority apparently is, that in
        such circumstance the courts of this state are powerless to ever
        quash, issue protective orders, or modify the scope of our own
        subpoena. Indeed, our Civ.R. 45(C)(3) states: “On timely
        motion the court from which the subpoena was issued shall
        quash or modify the subpoena.” Since it is our own writ that
        compels the non-party’s attendance, we certainly have an
        interest in its scope and enforcement. If the nonparty witness
        refused to attend or to answer questions we would certainly feel
        obliged, and properly so, to enforce the writ. By the same token,
        we should have correlative power to excuse or modify.
        Certainly, the District of Columbia Superior Court cannot
        enforce our writs. This is entirely consistent with the federal
        counterpart Rule 45 on which our own rule is modeled. The
        district court which issued the subpoena at the request of a
        foreign tribunal has jurisdiction to quash, modify, or condition
        its terms. In re Digital Equip. Corp. (C.A.8, 1991), 949 F.2d 228,
        231; In re Sealed Case (C.A.D.C., 1998), 141 F.3d 337, 342–343.

Fischer at *98 (Porter, J., concurring).

        {¶26} This Court echoed a similar sentiment to the separate concurrence in

Fischer when we previously had the opportunity to examine this issue in In re

Matter of Deposition of Turvey, 3d Dist. Van Wert No. 15-02-07, 2002-Ohio-

6008.    In Turvey, plaintiffs in a pending civil suit in California filed a

“commission” issued by the Superior Court of California, County of Santa Clara,

declaring Turvey, a non-party deponent, to be a material witness in the underlying

action pending in the foreign jurisdiction and requested the Van Wert County Ohio

Court of Common Pleas to issue a subpoena for Turvey to appear at a deposition

                                           -13-
Case No. 5-16-02


in Ohio and to produce certain documents. Id. at ¶ 3. The Van Wert County Clerk

of Courts issued a subpoena pursuant to an order of the Van Wert County

Common Pleas Court. Id. Turvey subsequently filed a motion to quash and the

Van Wert County Common Pleas Court granted the motion on the basis that the

information sought from Turvey was undiscoverable. Id. at ¶ 5. The plaintiffs in

the California case appealed asserting that the Ohio court lacked jurisdiction to

quash a “California subpoena.” Id. at ¶ 7.

       {¶27} In Turvey, we discussed the Eighth Appellate District’s interpretation

of R.C. 2319.09 and expressly disagreed with its determination that the statute

limited an Ohio court’s authority over subpoenas issued by an Ohio clerk of courts

under a discovery request from a foreign court. Id. at ¶ 9. Contrary to the court in

Fischer, we concluded that the subpoena was not a “California” subpoena, but

rather an Ohio subpoena issued by an Ohio court. Id. at ¶ 10. Therefore, Civ.R.

45(C)(3) provided the Ohio court with the authority to quash or modify the Ohio

subpoena. Id.

       {¶28} We further addressed the appellants’ argument that the Van Wert

County Common Pleas Court’s decision to grant the motion to quash the subpoena

failed to give full faith and credit to a “commission” issued by the California

Court. Id. at ¶ 21. We noted that “the commission in question, issued by the

California Superior Court pursuant to Cal.Civ.Pro. § 2026(C), authorizes the


                                       -14-
Case No. 5-16-02


commissioned party to conduct the deposition of Deborah Turvey in Ohio. The

commission further empowers the commissioned party to ‘request that process

issue in the place where the examination is to be held, requiring attendance and

enforcing the obligations of the deponents to produce documents and answer

questions.’ Cal.Civ.Pro. § 2026(C).” Id. at ¶ 22. We found “no evidence that the

trial court disrespected or interfered with the commissioning order issued by the

California Superior Court when it quashed the Ohio subpoena.” Id. at ¶ 23.

“Quashing the Ohio subpoena did not interfere with [commissioned party’s]

authority to depose Turvey for purposes of the California action.” Id.

      {¶29} More recently, the Ninth District revisited its Lampe decision and

considered the Eighth District’s holding in Fischer. See Kaplan v. Tunnerman-

Kaplan, 9th Dist. Wayne No. 11CA0011, 2012-Ohio-303. Kaplan involved a

pending divorce action in Pennsylvania in which the husband sought to obtain

information about the wife’s financial interest in an Ohio company owned by her

father. Id. at ¶ 2. Upon the husband’s motion, the Pennsylvania Common Pleas

Court issued a “rogatory letter” requesting the Wayne County Ohio Court of

Common Pleas issue an order for the wife’s father to appear for a deposition in

Ohio with certain financial documentation. Id. The Wayne County Clerk of

Courts issued the subpoena in accordance with the rogatory letter. Id.        The

deponent-father-in-law, filed a motion to quash the subpoena on the basis that the


                                       -15-
Case No. 5-16-02


wife possessed only a token interest in the business and compliance with the

subpoena would subject him to an undue burden. Id. at ¶ 12. The Wayne County

Common Pleas Court granted the motion to quash the subpoena. Id. at ¶ 2. The

husband appealed claiming the Ohio court failed to accord comity to the foreign

court’s discovery request when it granted the motion to quash the subpoena. Id.

         {¶30} The appellate court in Kaplan addressed the Fischer decision and

found the facts distinguishable.3 Id. at ¶ 7. The court then discussed the principle

of comity and, similar to our analysis in Turvey, examined the nature of the

underlying discovery request from the foreign court and concluded that the Ohio

court did not err in quashing the subpoena.

         As to the doctrine of comity, Kaplan argues that a trial court
         errs when it does not “give effect to the laws and judicial
         decisions” of another court. Yet, the trial court here did not
         disregard any law or judicial decision of another court. The
         Fayette County Court of Common Pleas issued a rogatory letter.
         A rogatory letter is not a judicial decision. A rogatory letter is
         merely a request from one jurisdiction to a foreign jurisdiction
         asking the latter, while “acting through its own courts and by
         methods of court procedure peculiar thereto and entirely within
         the latter’s control, to assist the administration of justice * * *.”
         The Wayne County Court of Common Pleas did not err by
         employing its own procedures and exercising its own discretion,
         in response to the motion to quash here.


3
  The court in Kaplan found Fischer distinguishable “on the basis that it involved an Ohio trial court ruling
on a motion to quash subpoenas issued in a foreign court. The subpoena here [in Kaplan] was issued by
and quashed by the Wayne County Court of Common Pleas.” See Kaplan at ¶ 7. However, as we pointed
out in a prior footnote, the majority opinion in Fischer did not clearly articulate this aspect of the
procedural posture. Rather, it was the separate concurrence in Fischer that clarified the subpoena was
issued by the Cuyahoga County Ohio Clerk of Courts pursuant to R.C. 2319.09, which is precisely the
situation presented in Kaplan and in the instant case. See, supra, note 1.

                                                   -16-
Case No. 5-16-02



Kaplan at ¶ 8 (Internal citations omitted).

                                     Discussion

       {¶31} This is the legal landscape upon which we address Beach’s

arguments on appeal—specifically that the Hancock County Common Pleas Court

erred in disregarding our previous decision in Turvey and in relying upon the

Eighth District’s holding in Fischer to determine that it had no authority to review

the merits of Beach’s motion to quash the subpoena.

       {¶32} Initially, we note that the language of R.C. 2319.09 clearly invokes

the Ohio discovery procedures to govern the implementation of a foreign court’s

discovery request for a subpoena to be issued upon an Ohio resident for use in a

civil action pending in the foreign jurisdiction. Notably, the statute does not

expressly limit an Ohio court’s authority in executing the subpoena, nor does it

make a distinction between an Ohio court’s authority under R.C. 2319.09 and any

other discovery proceeding taking place under its jurisdiction. To the contrary, the

statutory language explicitly states that “witnesses may be compelled to appear

and testify in the same manner and by the same process and proceedings as are

employed for the purpose of taking testimony in proceedings pending in this

state.” R.C. 2319.09 (emphasis added). Thus, it would appear that the statute

confers the same authority to an Ohio court under these circumstances as the Ohio

court would otherwise have in any other proceeding pending in that court, which

                                        -17-
Case No. 5-16-02


would include the authority under Civ.R. 45(C)(3) to quash or modify a

subpoena.4

         {¶33} Moreover, we recognize that there are at least two competing

interests underpinning this issue.                The Connecticut court has an interest in

obtaining all information relevant to the lawsuit consistent with its laws, while the

Ohio court has interest in protecting its residents from unreasonable and overly

burdensome discovery requests.                 Accordingly, the Ohio court clearly has an

interest in the scope of a subpoena issued by its clerk of courts for the purpose of

compelling the appearance and compliance of an Ohio resident. In our view,

confining an Ohio court’s authority over a subpoena issued by its own clerk of

courts to that of simply issuance and enforcement of the foreign court’s discovery

request, both fails to effectively serve the interest of the foreign court and fails to

give credence to the equally important interests of the Ohio court.

         {¶34} For example, the idea that an Ohio court has more limited authority

over a subpoena under R.C. 2319.09 than generally conferred by Ohio law is also

problematic for both the foreign court and the Ohio court on procedural due

process grounds. If the Ohio court is powerless to ever quash, issue protective

4
  To be clear, we do not interpret the scope of R.C. 2319.09 to empower Ohio courts with broad authority
over all discovery matters in the underlying civil action pending in the foreign court. Rather, we are simply
stating that under R.C. 2319.09, the Ohio court is vested with the same authority to supervise the subpoena
and deposition as provided for by Ohio law under Civ.R. 45. To this point, we also find it peculiar that
court in Fischer appeared to concede that an Ohio court retained the authority to issue sanctions to compel
a party’s compliance with the subpoena under Civ.R. 37, but nevertheless held that it was stripped of the
authority to quash or modify the subpoena under Civ.R. 45.


                                                   -18-
Case No. 5-16-02


orders, or modify the scope of its own subpoena, and if the foreign court is

considered the “issuing court” for purposes of Civ.R. 45, as the court in Fischer

has stated, then it appears that the Ohio deponent must challenge the propriety of

the subpoena in the foreign court where the underlying civil action is pending—

i.e., Connecticut. The mechanics of this endeavor seem entirely problematic as it

is unclear to us what power the Connecticut court has, if any, to quash and/or

modify a subpoena captioned in an Ohio court, bearing the seal of an Ohio clerk of

courts, and requiring the deponent to appear in Ohio.

         {¶35} It is further notable that this concept is also inconsistent with

Connecticut’s law on this matter. Connecticut’s authority governing the issuance

of subpoenas for the taking of a deposition for use in a foreign court states:

         Deposition of witnesses living in this state may be taken in like
         manner to be used as evidence in a civil action or probate
         proceeding pending in any court of the United States or of any
         other state of the United States or of any foreign country, on
         application to the court in which such civil action or probate
         proceeding is pending of any party to such civil action or
         probate proceeding. The Superior Court shall have jurisdiction to
         quash or modify, or to enforce compliance with, a subpoena issued
         for the taking of a deposition pursuant to this subsection.

Conn. Gen. Stat. 52-148e(f)(1). (Emphasis added).5



5
   As a result, we are also not persuaded by the argument that permitting an Ohio court to exercise its
authority under Civ.R. 45(C)(3) when it receives a discovery request from a foreign court pursuant to R.C.
2319.09 somehow offends the doctrine of comity. In each instance in the cases cited above, the Ohio court
automatically ordered its clerk of courts to issue a subpoena in accordance with the discovery request of the
foreign court, which, as noted above, is fully in accordance with what Connecticut would do with a similar
subpoena request from Ohio.

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        {¶36} Accordingly, we conclude that R.C. 2319.09 invokes the applicable

authority of the Ohio court under Ohio law relative to supervising the subpoena

issued by its clerk of courts, including the power to quash the subpoena issued in

compliance with a discovery request from a foreign court where the underlying

civil case is pending.6           We believe our conclusion in resolving this case is

consistent with our prior precedent on this matter.

        {¶37} In applying these principles to the case sub judice, we conclude that

the Hancock County Court of Common Pleas erred when it determined that it

lacked the authority to rule on the merits of Beach’s motion to quash the

subpoena. We therefore remand the case to the Hancock County Common Pleas

Court to proceed with providing full consideration to the arguments raised by each

party in the motion to quash and the responsive memoranda without regard to the

issues raised therein as to the court’s jurisdiction over the matter and to render a

decision in accordance with provisions set forth in Civ.R. 45.




6
  We note that the Ohio Legislature as recently adopted the Uniform Interstate Depositions and Discovery
Act. See R.C. 2319.09 (later version). This newly enacted legislation is to take effect on September 14,
2016 and states the following with respect to the issue resolved in this case:

        (F) An application to the court for a protective order or to enforce, quash, or modify
        a subpoena issued by a clerk of court * * * shall comply with the Ohio Rules of Civil
        Procedure and be submitted to the court in the county in which discovery is to be
        conducted.

R.C. 2913.09(F)(eff. Sept. 14, 2016).


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       {¶38} Based on the forgoing, Beach’s assignments of error are sustained

and the judgment is reversed and we remand the matter to the trial court for further

proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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