[Cite as O'Donnell v. Cooper Tire & Rubber Co., 2016-Ohio-5097.]




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



FRANCIS P. O'DONNELL JR.,

        PLAINTIFF-APPELLEE,                                        CASE NO. 5-16-05

        v.

COOPER TIRE AND RUBBER CO.,

        DEFENDANT-APPELLEE.                                        OPINION

[DEWAYNE “DEWEY” BEACH - APPELLANT]
[DUANE RICHARD STEPHENS - APPELLANT]



                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2015CV512

                      Judgment Reversed and Cause Remanded

                             Date of Decision: July 25, 2016




APPEARANCES:

        William E. Clark for Appellants

        Bradley S. Warren and Jeffrey A. Mega for Appellee,
                Francis P. O’Donnell, Jr.
Case No. 5-16-05




SHAW, P.J.

       {¶1} Appellants, Dwayne “Dewey” Beach and Duane Richard Stephens

(collectively referred to as “deponents”), appeal the February 8, 2016 judgment

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

motions to quash a subpoena duces tecum.

                          Facts and Statement of the Case

       {¶2} Beach and Stephens are non-party witnesses in four consolidated

Superior Court of Providence County, Rhode Island actions filed under the lawsuit

initiated by Plaintiff, Francis P. O’Donnell (“O’Donnell”), against Defendant,

Cooper Tire and Rubber Company. O’Donnell alleged that a tire manufactured by

Cooper Tire caused a catastrophic accident resulting in severe injuries to four

individuals and the death of a young woman. O’Donnell claimed that the accident

was caused by the separation and detachment of the steel belts of the tire which

resulted in the driver losing control of the vehicle.

       {¶3} On December 11, 2015, O’Donnell filed applications pursuant to R.C.

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

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

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

both Hancock County residents, to produce certain records and appear for a


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Case No. 5-16-05



deposition in Ohio. O’Donnell attached “Letters Rogatory” from the Rhode Island

court requesting, as a matter of comity, that the subpoenas be issued to compel the

attendance of Beach and Stephens at an audio-visual deposition on a date agreed

upon by the parties of the action and the deponents, and a consolidated order from

the Rhode Island court finding the depositions of Beach and Stephens were

necessary in the Rhode Island action.

      {¶4} The same day, the Hancock County Common Pleas Court granted the

applications and ordered the Hancock County Clerk of Courts to issue subpoenas

duces tecum requiring the deponents to appear for a deposition at a specified

location in Toledo, Ohio on January 20, 2016, and to produce the requested

documents. The Hancock County Clerk of Courts issued the subpoenas, which

were served upon Beach and Stephens.

      {¶5} On December 22, 2015, Beach and Stephens each filed a motion to

quash the subpoenas in the Hancock County Common Pleas Court, asserting that

they had not received notice of the application for the subpoenas in either the

Rhode Island court or the Hancock County Common Pleas Court and thus were

not able to oppose the issuance of the subpoenas in the Ohio court. They 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,

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Case No. 5-16-05



to examine the facts underlying the subpoenas and to quash the subpoenas when

necessary instead of simply “rubber stamping” the foreign court’s discovery

request. 9th Dist. Summit 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).

      {¶6} In accompanying affidavits, Beach and Stephens each explained that

they were retired from Cooper Tire and claimed that compliance with the

subpoenas subjected them to an undue burden. They both sought the Hancock

County Common Pleas Court to quash the subpoenas on that basis. See Civ.R.

45(C)(3)(d). They further claimed the discovery request was unreasonable due to

the fact that they were being solicited for a deposition strictly because of their

former high ranking positions at Cooper Tire and contended O’Donnell failed to

demonstrate that they possessed any unique personal knowledge of the facts

relevant to the Rhode Island lawsuit. The deponents also pointed to the numerous

times they had been deposed in other similar lawsuits and suggested that the

depositions in the current cases would be duplicative and unnecessary.

      {¶7} Beach and Stephens also submitted a “Statement of Counsel”

indicating that their counsel attempted to resolve the undue burden issue with

O’Donnell’s counsel prior to filing the motions to quash the subpoenas under

Civ.R. 45(C)(3)(d). See Civ.R. 45(C)(4).



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Case No. 5-16-05



       {¶8} In response, O’Donnell filed a memorandum opposing the motions to

quash the subpoenas and relied upon an opinion from the Eighth Ohio Appellate

District, Fischer Brewing Co. v. Flax, stating “we 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).

O’Donnell requested the Hancock County Common Pleas Court overrule the

motions to quash the subpoenas on the basis that the Ohio court lacked the

authority to consider the facts underlying the subpoenas. O’Donnell also claimed

that the deponents had personal knowledge relevant to the lawsuit and were not

merely being sought as witnesses because of their former positions at Cooper Tire,

and that prior depositions of the deponents in other cases would not suffice.

       {¶9} The deponents 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.

       {¶10} On February 8, 2016, the Hancock County Common Pleas Court

issued a decision overruling the motions to quash the subpoenas. The court

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Case No. 5-16-05



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

on three grounds: (1) “Ohio has long favored a liberal discovery philosophy;” (2)

“Civil Rule 45 does not grant this Court authority to quash, as Deponent [sic]

contends. Civ.R. 45 specifically authorizes the granting of a motion to quash by

the “issuing court” which is arguably the Rhode Island Superior Court pursuant to

the three Letters Rogatory issued on November 20, 20151;” and (3) “the principles

of comity and full faith and credit require Ohio Courts to resist the temptation to

substitute their own judgments for that of another jurisdiction’s.” (Doc. No. 29 at

4). Thus, the Hancock County Common Pleas Court determined that it lacked the

authority to quash the subpoenas and overruled the motions.

        {¶11} Notwithstanding this fact, in its judgment entry, the Hancock County

Common Pleas Court purported to address the deponents’ arguments supporting

their motions to quash the subpoenas. Specifically, the court indicated that it

found no merit in the argument that the depositions were sought simply based

upon the deponents’ former high ranking status within the company and further

opined that compliance with the subpoenas would not subject either deponent to

an undue burden.




1
  The original applications pursuant to R.C. 2319.09 were premised upon three Letters Rogatory issued by
the Rhode Island court, however, only two of the three deponents appealed the Hancock County Common
Pleas Court’s denial of the motions to quash.

                                                   -6-
Case No. 5-16-05



      {¶12} Beach and Stephens subsequently filed this appeal, asserting the

following assignments of error.



                       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 FINDING THAT THE
      EVIDENCE FAILED TO DEMONSTRATE GROUNDS TO
      QUASH THE SUBPEONA UNDER CIV. R. 45.

                            First Assignment of Error

      {¶13} In their first assignment of error, Beach and Stephens argue 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 their motions to quash the

subpoenas based upon their claims that compliance with the subpoenas subjected

them to an undue burden.

                                  Standard of Review

      {¶14} 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

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Case No. 5-16-05



review is de novo.” Riedel v. Consol. Rail Corp., 2010-Ohio-1926, ¶ 6, 125 Ohio

St. 3d 358, 359, 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.)

      {¶15} 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;

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Case No. 5-16-05




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

       {¶16} 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.




                                         -9-
Case No. 5-16-05



       {¶17} 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

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.

       {¶18} 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,

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Case No. 5-16-05



        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.

        {¶19} 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.2

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

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

2
 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).

                                                  -11-
Case No. 5-16-05



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

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).

        {¶21} 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).3


3
   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

                                                  -12-
Case No. 5-16-05



          {¶22} 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

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.

          {¶23} 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.

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.


                                                  -13-
Case No. 5-16-05



       {¶24} 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

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).

       {¶25} 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-


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Case No. 5-16-05



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

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

Common Pleas. 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.

        {¶26} 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.

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      {¶27} 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

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.

      {¶28} 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

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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

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.

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

found the facts distinguishable.4 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


4
  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.

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Case No. 5-16-05



       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.

Kaplan at ¶ 8 (Internal citations omitted).

                                     Discussion

       {¶30} This is the legal landscape upon which we address the arguments on

appeal—specifically that the Hancock County Common Pleas Court erred in

relying upon the Eighth District’s holding in Fischer to determine that it had no

authority to review the merits of the motions to quash filed by the deponents.

       {¶31} 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

                                        -18-
Case No. 5-16-05



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

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

subpoena.5

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

interests underpinning this issue.               The Rhode Island 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


5
  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.


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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.

         {¶33} 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

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., Rhode Island. The mechanics of this endeavor seem entirely problematic as it

is unclear to us what power the Rhode Island 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.6

         {¶34} 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



6
  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.

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

civil case is pending.7 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 the motions to quash

the subpoenas filed in this case. The first assignment of error is sustained.

                                   Second Assignment of Error

        {¶35} The second assignment of error focuses on the remarks made by the

Hancock County Common Pleas Court after it determined that it had no authority

to entertain the motions to quash. The deponents claim these comments purport to

address the merits of the issues raised by the parties in the motions and the

responsive memoranda.             However, due to the fact that the court’s discussion

occurred after it found that it was without the authority to quash the subpoenas, we

conclude that this commentary was simply gratuitous and does not carry the force

and effect of a legal ruling. Accordingly, we find the arguments raised on appeal




7
  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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regarding these statements in the judgment entry to be moot and we decline to

address the second assignment of error.

       {¶36} In light of our resolution of the first assignment of error, we remand

the case to the Hancock County Court of Common Pleas to proceed with

providing full consideration to the arguments raised by each party in the motions

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 the provisions set forth in Civ.R. 45.

       {¶37} Based on the forgoing, the first assignment of error is 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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