[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
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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
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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).
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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.
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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-
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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
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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
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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.
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{¶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).
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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