Trick v. ScherkerTrick v. Scherker
Rendered on the 24th day of July, 2015.
WALTER M. MESSENGER, Atty. Reg. No. 0074132, 2550 Corporate Exchange, Suite 101, Columbus, Ohio 43231
Attorney for Plaintiff-Appellee
STEPHEN P. GRIFFIN, Atty. Reg. No. 0039655 and MICHAEL J. KAHLENBERG, Atty. Reg. No. 0082435, 825 S. Main Street, North Canton, Ohio 44720
and
DAVID M. BEST, Atty. Reg. No. 0014349, 4900 West Bath Road, Akron, Ohio 44333
Attorneys for Defendants-Appellants
STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 West Second Street, Suite 1500, Dayton, Ohio 45402
Attorney for Defendant-Appellee, Laura L. Scherker
{¶ 1} Dr. Sam N. Ghoubrial and several business entities affiliated with his medical practice1 in Wadsworth, Medina County, Ohio were subpoenaed in relation to a personal injury lawsuit between Tony Trick and Laura Scherker. Dr. Ghoubrial and the business entities appeal from the trial court‘s ruling on their motion to quash the subpoenas, which enforced the subpoenas to the extent that they requested documents and set a new date by which the documents should be produced, and quashed the subpoenas to the extent that they required testimony.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
{¶ 3} The lawsuit between Trick and Scherker relates to a traffic accident that occurred in Montgomery County, Ohio on July 27, 2011. Dr. Ghoubrial treated Trick on several occasions in the months following the accident, and the subpoenas related to billing and treatment records.2 In February 2013, Trick sued Scherker to recover for his personal injuries. The case was dismissed in 2013 and refiled in 2014 pursuant to
{¶ 4} When the complaint was refiled, Scherker issued the subpoenas in question
{¶ 5} In its Order and Entry disposing of Scherker‘s and Dr. Ghoubrial‘s motions, the trial court essentially severed each of the subpoenas, quashing one part and enforcing the other. It concluded that the subpoenas were enforceable with respect to the production of documents, because the deficiency in tendering travel fees did not relate to this aspect of Scherker‘s request. However, it quashed that part of the subpoenas that compelled the recipients to appear to testify, due to Scherker‘s failure to tender the fees required under
{¶ 6} Dr. Ghoubrial appeals, raising one assignment of error, which states:
The trial court erred in failing to quash the subpoenas in their entirety.
{¶ 7} Dr. Ghoubrial contends that the subpoenas were “invalid and unenforceable” based on Scherker‘s failure to tender fees for travel expenses, that the trial court misapplied
{¶ 8} A trial court has broad discretion over discovery matters. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18; EnQuip Technologies Group, Inc. v. Tycon Technoglass, S.R.L., 2d Dist. Greene Nos. 2009 CA 42 and 2009 CA 47, 2010-Ohio-28, ¶ 104. Generally, an appellate court reviews a trial court‘s ruling to quash or enforce a subpoena under an abuse-of-discretion standard. Chiasson v. Doppco Dev., L.L.C., 8th Dist. Cuyahoga No. 93112, 2009-Ohio-5013, ¶ 10, citing State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 692 N.E.2d 198 (1998); Ohio Elections Comm. v. Ohio Chamber of Commerce & Citizens for a Strong Ohio, 158 Ohio App.3d 557, 2004-Ohio-5253, 817 N.E.2d 447, ¶ 18 (10th Dist.), citing Petro v. N. Coast Villas Ltd., 136 Ohio App.3d 93, 96, 735 N.E.2d 985 (9th Dist.2000). Absent an abuse of discretion, an appellate court must affirm a trial court‘s disposition of discovery issues. Bd. of Clark Cty. Commrs. v. Newberry, 2d Dist. Clark No. 2002-CA-15, 2002-Ohio-6087, ¶ 13. The term “abuse of discretion” implies that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} However, when a trial court‘s decision to enforce or quash a subpoena is based on a specific construction of law, an appellate court reviews the decision under a de novo standard. Citizens for a Strong Ohio at ¶ 18. It is appropriate for an appellate court to substitute its judgment for that of the trial court where matters of law are involved.
{¶ 10}
(B) * * * Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person‘s usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested * * *, and by tendering to the person upon demand the fees for one day‘s attendance and the mileage allowed by law. * * * If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day‘s attendance and mileage shall be tendered without demand.
* * *
[C](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 anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(5) , * * *;(d) Subjects a person to undue burden.
{¶ 12} The recipients of the subpoenas did not produce the requested documents by July 1 or appear to testify on July 3, 2014. They also did not object within 14 days after service of the subpoenas, a procedure which is provided for under
{¶ 13} In October 2014, the trial court overruled the motion for sanctions and the motion to quash the subpoenas. The trial court found that the subpoenas were “defective,” in part, in that they commanded the recipients’ attendance without providing
{¶ 14} Dr. Ghoubrial argues that the trial court should have quashed the subpoenas entirely due to Scherker‘s failure to include the costs of attendance. In support of this argument, he contends that
{¶ 15} We agree with Dr. Ghoubrial‘s assertion that the subpoenas were defective as issued because of Scherker‘s failure to tender the fees for attendance. The recipients could not have been compelled to appear or be found in contempt for failure to appear based on the original subpoenas. However,
{¶ 16} Although Dr. Ghoubrial seeks to strictly enforce the provisions of
{¶ 17} We recognize, as other districts have, that Ohio law is “sparse” regarding the effect of a failure to tender fees on the validity of a subpoena. See A.O. Smith Corp. v. Perfection Corp., 10th Dist. Franklin No. 03AP-266, 2004-Ohio-4041, ¶ 26. This may be due in part to the broad discretion afforded to trial courts with respect to discovery and the ease with which subpoenas may be reissued. Nonetheless, at least one appellate court has looked to the federal courts for guidance, because its rule governing the tender of fees with subpoenas is similar to the Ohio rule. Id. A number of federal courts have held that failure to tender fees renders a subpoena defective. Id. at ¶ 26; see, e.g., Smith v. Midland Brake, Inc., 162 F.R.D. 683, 686 (D. Kan. 1995) (discussing problems with service, documentation of receipt, and tendering of fees); Coleman v. St. Vincent De Paul Soc., 144 F.R.D. 92, 94 (E.D. Wis. 1992) (discussing fees associated with the issuance of subpoenas, including travel fees, where the litigant is indigent).
{¶ 18} Other federal courts have recognized, however, that a defect in the tendering of travel fees “may be cured by tendering the fees after the service of the subpoena,” so long as fees are tendered ”before appearance is compelled.” A.O. Smith Corp. at ¶ 26, citing Klockner Namasco Holdings Corp. v. Daily Access.com, Inc., 211 F.R.D. 685, 687 (N.D. Ga. 2002) (emphasis added in A.O. Smith Corp.). Similarly, Ohio courts have held that the failure to tender fees precludes a finding of contempt, without finding that this defect in the subpoena cannot be cured. See State v. Eyrich, 7th Dist. Monroe No. 794, 1998 WL 473334 (July 22, 1998); State v. Bates, 9th Dist. Summit No. 13646, 1998 WL 134288 (Dec. 14, 1998).
{¶ 19} In Dr. Ghoubrial‘s case, the trial court did not attempt to compel the appearance of the subpoenaed witnesses before the defect in the subpoena was corrected. Rather, it ordered the production of documents under the existing subpoena, because the failure to tender fees did not relate to that request, and it held the subpoena to be not enforceable insofar as it compelled attendance, because the provision of fees was required to compel attendance. This resolution is consistent with the principles discussed in A.O. Smith Corp. and with the broad discretion generally afforded to trial courts in the handling of discovery matters.
{¶ 20} Dr. Ghoubrial‘s assignment of error is overruled.
{¶ 21} The judgment of the trial court will be affirmed.
. . . . . . . . . . . . .
FAIN, J. and HALL, J., concur.
Walter M. Messenger
Stephen P. Griffin
Michael J. Kahlenberg
David M. Best
Steven O. Dean
Hon. Gregory F. Singer