Tilr Corp. v. TalentNow, L.L.C.

[Cite as Tilr Corp. v. TalentNow, L.L.C., 2023-Ohio-1345.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TILR CORPORATION, : APPEAL NO. C-220323
TRIAL NOS. A-2102584
Plaintiff-Appellee, : A-2103170
vs. :
TALENTNOW, LLC, O P I N I O N.
:
and
:
VORA VENTURES, LLC,
:
Defendants-Appellants,
:
and
:
SUMMER M. CRENSHAW,
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: April 26, 2023
Baker & Hostetler, LLP, M. Scott McIntyre and Sean P. Ryan, for Plaintiff-Appellee,
Vorys, Sater, Seymour and Pease, LLP, David F. Hine and Jordan T. Steiner, for
Defendants-Appellants TalentNow, LLC, and Vora Ventures, LLC.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendants-appellants TalentNow, LLC, and Vora Ventures, LLC,
(collectively “Talent & Vora”) challenge three trial court orders in plaintiff-appellee
Tilr Corporation’s presuit discovery action. For the following reasons, we affirm the
denial of Talent & Vora’s motion to dismiss, reverse the order compelling discovery
and awarding reasonable expenses, and remand the case for further proceedings.
I. Facts and Procedure
{¶2} Tilr is an algorithm-based talent acquisition company. In 2020,
Summer M. Crenshaw left her position as Tilr’s chief operating officer to work as
TalentNow’s chief executive officer. After investigating its own servers, Tilr allegedly
discovered that Crenshaw had emailed roughly 19 gigabytes of data from her work
computer to her personal email, without permission from Tilr. As a result, Tilr filed
actions for presuit discovery under Civ.R. 34(D)(1) and R.C. 2317.48 against Talent &
Vora and Crenshaw. Tilr based its requests for presuit discovery on Crenshaw’s alleged
actions, asserting that she sent these emails to “unjustly benefit herself and others to
the detriment of” Tilr. Eventually, the cases were consolidated.
{¶3} Under Civ.R. 34(D), Tilr submitted the following requests for
production of documents (“RFP”):
1. “Produce any agreements entered into between TalentNow, Vora
Ventures, LLC, and/or any related entity and Ms. Crenshaw.”
2. “Produce any communications between Ms. Crenshaw and
TalentNow, Vora Ventures, LLC, and/or any related entity or
individual acting on behalf of these corporate entities while she was
employed by Plaintiff Tilr.”
3. “Produce any non-privileged emails or text messages from
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OHIO FIRST DISTRICT COURT OF APPEALS
TalentNow, Vora Ventures, LLC, and/or any related entity or
individual has sent that concerns Ms. Crenshaw leaving Plaintiff
Tilr.”
4. “Produce all personnel documents of Ms. Crenshaw, including but
not limited to documents setting forth the nature of her employment
with TalentNow and/or Vora Ventures, LLC.”
5. “Consent to a forensic inspection of Ms. Crenshaw’s electronic
devices in the possession or control of TalentNow, Vora Ventures,
LLC, and/or any related entity.”
{¶4} Under R.C. 2317.48, Tilr submitted the following interrogatories:
1. “Please list all customers and vendors Ms. Crenshaw worked with or
attempted to work with and/or solicited in 2020 to the present.”
2. “Please state Ms. Crenshaw’s day to day business activities with
TalentNow, Vora Ventures, LLC, and/or any related entity including
the identity of all customers and vendors Ms. Crenshaw has worked
with and sought to work with at TalentNow, Vora Ventures, LLC,
and/or any related entity.”
3. “Please list all communications Ms. Crenshaw has had with
Cremalab, LLC or ‘Crema’ including the dates of all communications,
whom those communications were with, and the substance of each
communication.”
4. “Please list any and all communications Ms. Crenshaw had with any
representative of TalentNow, Vora Ventures, LLC or any related
entity while she maintained employment with Plaintiff, including the
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OHIO FIRST DISTRICT COURT OF APPEALS
dates of all communications, with whom those communications were
with, and the substance of each communication.”
5. “Please state in detail the type of business TalentNow conducted
prior to hiring Ms. Crenshaw.”
6. “Identify with specificity any and all efforts to verify Ms. Crenshaw’s
employment with Tilr, including but not limited to all reference
checks.”
{¶5} Talent & Vora moved to dismiss the petitions. Following a hearing, the
trial court denied the motion to dismiss, finding the fact that Crenshaw “allegedly
emailed herself confidential data and trade secrets from her work computer to her
personal computer, after she had already accepted a position at a competitor” was
sufficient to support a discovery action under R.C. 2317.48. In addition, the trial court
ruled that Tilr’s interrogatories under Civ.R. 34(D) were proper, relying on our opinion
in Wheeler v. Girvin, 1st Dist. Hamilton No. C-980302, 1999 Ohio App. LEXIS 1568(Apr. 9, 1999) to explain that the rule “permits the discovery of facts necessary to
determine if a person has a valid cause of action against a known party.” Crenshaw
moved, unsuccessfully, to dismiss the petition and later complied with Tilr’s requests.
{¶6} Months later, Talent & Vora moved for a protective order to excuse them
from responding to Tilr’s RFPs and interrogatories. Tilr opposed the motion, moved
to compel discovery, and requested sanctions. Beginning with the motion to compel,
the trial court found that the discovery sought by Tilr “related to ascertaining the
identity of a potentially adverse party and to determine if it has a valid claim against a
known adverse party.” Turning to the protective order, the trial court found that Talent
& Vora failed to make reasonable efforts to resolve the discovery matters as required
by Civ.R. 26(C), and that Talent & Vora made “no reasonable efforts to meet in good
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OHIO FIRST DISTRICT COURT OF APPEALS
faith and confer with [Tilr] to resolve this discovery dispute.” The trial court ruled that
Tilr’s interrogatories and RFPs were within the scope permitted by Civ.R. 34(D) and
R.C. 2317.48. Finally, the court awarded Tilr attorneys fees under Civ.R. 37(A)(5)(a),
finding that Talent & Vora lacked a substantial justification to move for a protective
order and oppose Tilr’s motion to compel because Talent & Vora sought to relitigate
arguments previously addressed in the court’s denial of their motion to dismiss.
II. Law and Analysis
{¶7} Talent & Vora appeal and raise three assignments of error. In their first
assignment of error, they argue that the trial court erred when it denied their motion
to dismiss. In their second assignment of error, they contest the trial court’s denial of
their motion for a protective order and grant of Tilr’s motion to compel. Finally, their
third assignment of error challenges the trial court’s award of attorney fees to Tilr.
Motion to Dismiss
{¶8} Talent & Vora’s first assignment of error challenges the trial court’s
denial of their motion to dismiss Tilr’s petition for presuit discovery. The parties
dispute the appropriate standard of review and whether Tilr’s petition satisfied the
pleading requirements set forth in Civ.R. 34(D)(1) and R.C. 2317.48.
Standard of review
{¶9} Talent & Vora argue that we review the trial court’s decision de novo,
just as we would any other ruling on a Civ.R. 12(B)(6) motion. See Cruz v. Kettering
Health Network, 2d Dist. Montgomery No. 24465, 2012-Ohio-24, ¶ 22. Tilr disagrees
and cites Huge v. Ford Motor Co., 155 Ohio App.3d 730, 2004-Ohio-232, 803 N.E.2d
859, ¶ 27 (8th Dist.), Baker v. Cooper Farms Cooked Meats, 3d Dist. Van Wert No. 15-
09-03, 2009-Ohio-3320, Rood v. FRJ, Ltd., 11th Dist. Lake No. 2010-L-077, 2011-
Ohio-2712, ¶ 35, Bay Emm Vay Store, Inc. v. BMW Fin. Servs. NA, L.L.C., 2018-Ohio-
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OHIO FIRST DISTRICT COURT OF APPEALS
2736, 116 N.E.3d 858, ¶ 11 (10th Dist.), and our opinion in Wheeler v. Girvin, to argue
that we should review the denial of Talent & Vora’s motion to dismiss for an abuse of
discretion.
{¶10} But while many of these cases cite an abuse-of-discretion standard, a
closer reading of these cases reveals that the appellate courts were, in essence, testing
the sufficiency of the pleadings. See Baker at ¶ 17 (rejecting the notion that the petition
lacked “sufficient underlying facts”); see also Huge at ¶ 27 (“The information required
by Civ.R. 34 is nowhere to be found in appellant’s complaint for discovery”); Rood at
¶ 32 (“This court must therefore determine whether appellee met the criteria to obtain
pre-filing production of documents”). And significantly, Bay Emm concerned an
appeal from the trial court’s denial of Bay Emm’s presuit petition—not an order
granting or denying a motion to dismiss. Bay Emm at ¶ 1. Finally, in Wheeler we
reviewed the petition and found that dismissal was improper because “Wheeler set
forth sufficient facts to show he had causes of action for malicious prosecution and
civil conspiracy.” Wheeler at 8.
{¶11} It is well established that a Civ.R. 12(B)(6) motion challenges the
sufficiency of a pleading. See Fry v. City of Cincinnati, 1st Dist. Hamilton No. C-
210482, 2022-Ohio-1248, ¶ 3; see also Bright Future Partners, Inc. v. P&G Distrib.,
LLC, 1st Dist. Hamilton No. C-160589, 2017-Ohio-4145, ¶ 9. In essence, Talent &
Vora’s motion to dismiss argued that Tilr “failed to plead operative grounds creating
the claim” for presuit discovery. See Marsalis v. Wilson, 149 Ohio App.3d 637, 2002-
Ohio-5534, 778 N.E.2d 612, ¶ 2 (2d Dist.); Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 532 N.E.2d 753 (1988). And “the question of whether the plaintiff has met the
requirements for an Action for Discovery is a question of law” that we review de novo.
Sizemore v. ESIS, Inc., 9th Dist. Medina No. 11CA0107-M, 2012-Ohio-4004, ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} As we held in Wheeler, “once the plaintiff has passed the Civ.R. 12(B)(6)
hurdle, discovery should proceed according to the civil rules, and the trial court enjoys
broad discretion to decide if matters are privileged or are otherwise proper subjects
for discovery.” Wheeler, 1st Dist. Hamilton No. C-980302, 1999 Ohio App. LEXIS
1568 at 12. In sum, we review the trial court’s denial of Talent & Vora’s Civ.R. 12(B)(6)
motion de novo. See Fry at ¶ 2. A court may grant a motion to dismiss a pleading for
failing to state a claim only after accepting the factual allegations in the pleading as
true, drawing all reasonable inferences in favor of the nonmoving party, and finding
that “ ‘it appears beyond doubt from the [pleading] that the plaintiff can prove no set
of facts entitling [it] to recovery.’ ” Id., quoting Thomas v. Othman, 2017-Ohio-8449,
99 N.E.3d 1189, ¶ 19 (1st Dist.).
Tilr alleged sufficient facts to sustain its action under Civ.R. 34(D)
{¶13} We begin with Civ.R. 34(D), which provides that “a person who claims
to have a potential cause of action may file a petition to obtain discovery.” Civ.R.
34(D)(1). The rule is designed “to avoid needlessly joining as defendants non-liable
parties who may have valuable information.” Cruz, 2d Dist. Montgomery No. 24465,
2012-Ohio-24, at ¶ 30. The parties agree that a petition must satisfy Civ.R. 34(D)(3)’s
pleading requirements before a court may issue an order for the production of
documents. Relevant here, a petitioner must allege that 1.) the documents are
“necessary to ascertain the identity of a potential adverse party,” 2.) the petitioner
would be unable to file a subsequent action without the production of documents, and
3.) the petitioner made reasonable efforts to obtain the information. Civ.R.
34(D)(3)(a)-(c).
{¶14} We note that the trial court relied on our opinion in Wheeler to explain
that Civ.R. 34(D) permits the discovery of facts necessary to determine if a person has
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OHIO FIRST DISTRICT COURT OF APPEALS
a valid cause of action against a known party. On appeal, the parties dispute the import
of Wheeler. For its part, Tilr agrees with the trial court. But our opinion in Wheeler
concerned the sufficiency and scope of Wheeler’s pleadings and interrogatories under
R.C. 2317.48. See Wheeler, 1st Dist. Hamilton No. C-980302, 1999 Ohio App. LEXIS
1568, at 2. In a tersely-worded paragraph, we recounted the promulgation of Civ.R.
34(D) following the Ohio Supreme Court’s interpretation of R.C. 2317.48 in Poulos v.
Parker Sweeper Co., 44 Ohio St.3d 124, 541 N.E.2d 1031 (1989). Considering the issue
at a high level of generality, we recognized that “[t]o some extent, the rule expands the
concept of pre-suit discovery.” Wheeler at 2. Significantly, Wheeler did not even
profess to interpret the language of Civ.R. 34(D). We simply found it unnecessary to
resolve any hypothetical conflict between the statute and the rule, explaining that “we
need not resolve that issue” as “Wheeler set forth sufficient facts to show he had causes
of action for malicious prosecution and conspiracy” and satisfied the pleading
requirements under R.C. 2317.48. Id. at 8.
{¶15} The facts alleged in Tilr’s petition, which we must accept as true, are that
Crenshaw accessed and transmitted 19 gigabytes of Tilr’s “most sensitive data” from
Tilr to her personal computer, and took the laptop issued to her by Tilr. Crenshaw’s
suspected misappropriation of that data coincided with the start of her position at
TalentNow. Further, Tilr alleged that Crenshaw’s actions were taken in coordination
with others. Among other documents, Tilr requested 1.) agreements between
Crenshaw, Talent & Vora, “and/or any related entity”; 2.) communications between
Crenshaw, Talent & Vora, “and/or any related entity” during Crenshaw’s time as a Tilr
employee; 3.) emails or text messages from Talent & Vora “and/or any related entity
or individual” to Crenshaw about her departure from Tilr; and 4.) consent to perform
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OHIO FIRST DISTRICT COURT OF APPEALS
a forensic inspection of Crenshaw’s devices in the possession of Talent & Vora “and/or
any related entity.”
{¶16} Talent & Vora emphasize the fact that Tilr knew the identity of adverse
parties to argue that Tilr’s presuit document request must fail. But this impermissibly
narrows the scope of Civ.R. 34. To be sure, presuit document requests must assist in
the identification of a potential adverse party. See Civ.R. 34(D)(3)(a). But the existence
of a known adverse party is not fatal to a party attempting to ascertain additional
potential adverse parties. See In re F.D. Johnson Co., 11th Dist. Lake No. 2018-L-009,
2018-Ohio-4803, ¶ 23 (“That a party is aware of some potential defendants does not
bar the filing of a discovery action to identifying other potential adverse parties.”).
Courts have rejected such a narrow interpretation of Civ.R. 34(D)(3)(a), adopting a
more reasonable interpretation of the rule, “that prelitigation discovery must be
necessary to ascertain the identity of an adverse party, regardless of how many known
adverse parties exist.” Cruz, 2d Dist. Montgomery No. 24465, 2012-Ohio-24, at ¶ 23.
{¶17} Here, Tilr’s petition alleged sufficient facts to find that the discovery
requested was necessary to ascertain the identity of additional employees or entities.
First, Tilr alleged the timing of Crenshaw’s actions suggested some degree of
coordination with Talent & Vora or others and constitute a breach of contractual or
common-law duties. In its RFPs, Tilr requested agreements, communications, non-
privileged emails and text messages, and an inspection of Crenshaw’s devices in the
possession of Talent & Vora and/or any related entity. And so, it becomes clear that
Tilr may be unable to file certain claims without the information contained in the
documents requested. See Civ.R. 34(D)(3)(a)-(b). And Tilr alleged multiple attempts
to voluntarily obtain the information. See Civ.R. 34(D)(3)(c). We hold that Tilr alleged
sufficient facts under Civ.R. 34(D) to survive Talent & Vora’s motion to dismiss.
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OHIO FIRST DISTRICT COURT OF APPEALS
Tilr alleged sufficient facts to sustain its action under R.C. 2317.48
{¶18} Finally, we turn to Tilr’s use of presuit interrogatories under R.C.
2317.48. Talent & Vora argue that Tilr’s petition fails to allege sufficient facts to
demonstrate that it needed to discover additional facts necessary to file a complaint.
Rather, Talent & Vora contend that Tilr was attempting to determine whether a cause
of action existed and characterize Tilr’s filing as an impermissible fishing expedition.
{¶19} R.C. 2317.48 authorizes the use of presuit interrogatories for the limited
purpose of discovering facts necessary to file a subsequent complaint. A party
“claiming to have a cause of action [who], without the discovery of a fact from the
adverse party, is unable to file [its] complaint” may file for presuit discovery and attach
“interrogatories relating to the subject matter of the discovery that are necessary to
procure the discovery sought.” R.C. 2317.48 The filing must establish “the necessity
and the grounds for the action.” Id. Presuit interrogatories are not meant to “gather
proof to support a claim or determine whether a cause of action exists.” Huge, 155
Ohio App.3d 730, 2004-Ohio-232, 803 N.E.2d 859, at ¶ 10-11 (affirming the dismissal
of an action for presuit interrogatories under R.C. 2137.48 because the plaintiff failed
“to identify what the[] causes of action may be [and] identify which facts sought in the
discovery action w[ould] support these causes of action.”). Rather, the statutory action
represents a compromise “between an unacceptable ‘fishing expedition’ ” and a party
in need of limited facts who would otherwise be prevented from filing a valid
complaint. Id., quoting Poulos, 44 Ohio St.3d at 127, 541 N.E.2d 1031. Broad assertions
of potential claims will not suffice; instead, “[i]t must be clear to the court what the
underlying claim is about.” Colegate v. Lohbeck, 78 Ohio App.3d 727, 730, 605 N.E.2d
1301 (1st Dist.1992). And we have explained that the filing and attached
interrogatories must be “narrowly tailored and specific to the necessary facts.” Id.10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Tilr identified a minimum of three potential claims, including
misappropriation of trade secrets, conversion, and fraud. Tilr alleged that Talent &
Vora are “actively misusing the data Ms. Crenshaw misappropriated to cause
irreparable financial harm to Plaintiff and give themselves and potentially others an
unfair advantage in the marketplace.” Tilr maintained a need for facts regarding the
use of Tilr’s confidential information, the nature of Crenshaw’s employment with
Talent & Vora, communications and negotiations leading to Crenshaw’s hiring, and
the taking of information. Tilr attached six interrogatories directed at Talent & Vora,
which requested a list of customers and vendors who worked with Crenshaw, a
description of Crenshaw’s day-to-day business activities, a list of communications with
Cremalab, LLC, a list of communications between Crenshaw and any representative of
Talent & Vora when Crenshaw was employed by Tilr, and a description of Talent &
Vora’s business before Crenshaw’s employment with the company.
{¶21} Looking to Tilr’s misappropriation-of-trade-secrets claim, the elements
are “(1) the existence of a trade secret; (2) the acquisition of a trade secret as a result
of a confidential relationship; and (3) the unauthorized use of a trade secret.”
Tomaydo-Tomahhdo L.L.C. v. Vozary, 2017-Ohio-4292, 82 N.E.3d 1180, ¶ 9 (8th
Dist.). Relevant here, Ohio’s Uniform Trade Secrets Act defines a trade secret as
“business information or plans, financial information, or listing of names, addresses,
or telephone numbers” that are “the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” R.C. 1333.61(D)(2). Without a doubt, Tilr
alleged the existence of a trade secret—that Crenshaw had access to intellectual
property, business plans and modeling, account and customer information, product
development, and business-strategy information. See id. According to the petition, Tilr
made reasonable efforts to maintain its secrecy. And taking all reasonable inferences
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OHIO FIRST DISTRICT COURT OF APPEALS
in favor of Tilr, the allegations establish that Talent & Vora acquired Tilr’s trade secrets
because of a confidential relationship.
{¶22} Tilr maintained that Talent & Vora are misusing the data. Tilr asserted
that, to pursue its claims, it needed “more information about how Defendants are
utilizing Plaintiff’s intellectual property, trade secret, confidential information, and
other non-public data.” To that end, Tilr requested a list of vendors and customers
with whom Crenshaw worked when she was employed with TalentNow and all
communications between Crenshaw and Cremalab, LLC. Talent & Vora contend that
this is insufficient for a presuit discovery action under R.C. 2137.48 and liken that
allegation to Bridgestone/Firestone v. Hankook Tire Mfg. Co., 116 Ohio App.3d 228,
233, 687 N.E.2d 502 (9th Dist.1996). In Bridgestone, dismissal was proper because
Bridgestone/Firestone failed to allege facts underlying its “reason to believe” that
Hankook, a company that employed a person who formerly worked for
Bridgestone/Firestone, obtained confidential and proprietary information. Rather,
the company stated that it “was seeking discovery to determine whether it had a cause
of action.” Id. at 232. In contrast, Tilr did not state that it is attempting to determine
whether it has a cause of action against Talent & Vora. Instead, it alleges that it is
attempting to determine how its trade secrets are being used. See Bridgestone at 231.
{¶23} Tilr alleged sufficient facts to reveal a potential cause of action to survive
Talent & Vora’s motion to dismiss. Tilr was entitled to move forward with its efforts to
obtain answers to its interrogatories. In sum, the trial court properly denied Talent &
Vora’s motion to dismiss because Tilr’s petition alleged sufficient facts to warrant
recovery under both Civ.R. 34(D) and R.C. 2317.48. We overrule Talent & Vora’s first
assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Protective Order & Motion To Compel
{¶24} In their second assignment of error, Talent & Vora maintain that the
trial court erroneously granted Tilr’s motion to compel and denied the protective
order. First, Talent & Vora contend that a protective order was necessary as Tilr’s
discovery requests exceeded the scope of presuit discovery under Civ.R. 34(D) and
R.C. 2317.48. Second, Talent & Vora argue that the protective order should have been
granted because Tilr possessed the very information it was requesting. And third,
Talent & Vora assert that Tilr was not entitled to discover trade secrets because Tilr
had little, if any, need for that information.
{¶25} Once a party survives a motion to dismiss, presuit discovery
“proceed[s] according to the civil rules, and the trial court enjoys broad discretion to
decide if matters are privileged or are otherwise proper subjects for discovery.”
Wheeler, 1st Dist. Hamilton No. C-980302, 1999 Ohio App. LEXIS 1568, at 8.
Therefore, we review the trial court’s decision for an abuse of discretion. Grace v.
Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 13 (1st Dist.),
citing State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198(1998). A trial court abuses its discretion when it exercises its discretionary authority
in an unwarranted way. See Colerain Twp. Bd. of Trustees v. Bench Billboard Co., 1st
Dist. Hamilton No. C-210342, 2022-Ohio-923, ¶ 6. To the extent that a discovery
dispute involves an issue of law, we review any such issue de novo. Migliara v.
Migliara, 1st Dist. Hamilton No. C-210413, 2022-Ohio-2111, ¶ 32.
{¶26} Talent & Vora moved for a protective order, which may be granted for
good cause and where “justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Civ.R. 26(C). But the rule
requires a threshold recitation of the requesting party’s “reasonable effort to resolve
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OHIO FIRST DISTRICT COURT OF APPEALS
the matter through discussion.” Id. The trial court denied Talent & Vora’s request for
a protective order because the company “failed to satisfy the reasonable effort
requirement.” The trial court cited Talent & Vora’s failure to respond to an email from
Tilr, which raised the possibility of narrowing the scope of Tilr’s requests to avoid a
protective order. Further, Talent & Vora waited until the day before the discovery
deadline to inform Tilr that it was “considering filing a motion for a protective order.”
In response, Tilr was willing to speak to Talent & Vora on the phone, provided that
Talent & Vora send Tilr a written explanation before the phone call. Talent & Vora
refused and moved for a protective order the following day.
{¶27} Talent & Vora emphasize the fact that they met and conferred with Tilr
and argue that the trial court refused to acknowledge this “objective fact.” But Civ.R.
26(C) requires a recitation of reasonable efforts. The court found Talent & Vora’s
efforts perfunctory, and that conclusion is supported by the record. We hold that
denying Talent & Vora’s motion for a protective order was not an abuse of discretion.
{¶28} But we arrive at a different conclusion regarding the trial court’s
decision to grant Tilr’s motion to compel. Under Ohio’s Civil Rules, “parties may
obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action.” Civ.R. 26(B)(1). Relevancy is not limited “to
the issues in the case, but to the subject matter of the action, which is a broader
concept.” Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 204, 757 N.E.2d 849(7th Dist.2001). Under Civ.R. 26(B)(6)(b), “the court must limit the frequency or
extent of discovery” if it determines that 1.) discovery is unreasonably cumulative or
duplicative, 2.) “the party seeking discovery has ample opportunity to obtain the
information,” or 3.) “the proposed discovery is outside the scope permitted.” Civ.R.
26(B)(6)(b)(i)-(iii).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} The trial court granted Tilr’s motion to compel and cited Wheeler for
the proposition that RFPs under Civ.R. 34(D) were appropriate for Tilr to determine
whether Talent & Vora misappropriated or gained access to the information
appropriated by Crenshaw. The trial court found that Tilr’s “discovery requests, in
part, are related to gathering information necessary to ascertain the identity of a
potential adverse party.” But as we explained in our analysis of Talent & Vora’s first
assignment of error, Wheeler did not broaden the scope of discovery under Civ.R.
34(D) in this respect. Rather, each request for documents under Civ.R. 34(D) must be
necessary to ascertain the identity of a potential adverse party. See Civ.R. 34(D)(3)(a).
Likewise, the trial court failed to consider whether Tilr’s interrogatories were designed
to discover a fact necessary to file a subsequent complaint. See R.C. 2317.48. Thus, the
trial court failed to determine whether Tilr’s requests exceeded the scope of Civ.R.
34(D) and R.C. 2317.48. See Civ.R. 26(B)(6)(b)(iii).
{¶30} Further, Talent & Vora opposed Tilr’s motion to compel based on their
contention that Tilr had access to the relevant information following Crenshaw’s
responses to Tilr’s discovery requests. The trial court’s decision failed to determine
whether Crenshaw’s discovery responses rendered Tilr’s requests unreasonably
cumulative or duplicative. See Civ.R. 26(B)(6)(b)(ii)-(iii). Therefore, the trial court
abused its discretion when it granted Tilr’s motion to compel without properly
analyzing Tilr’s interrogatories and RFPs under the appropriate statute and rule. In
addition, the trial court abused its discretion when it failed to consider whether Tilr
already had access to the information and whether Tilr’s interrogatories and RFPs
were unreasonably cumulative or duplicative.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} We overrule Talent & Vora’s second assignment of error in part, sustain
it in part, and remand the case for the trial court to analyze Tilr’s requests in a manner
consistent with this opinion. A remand is necessary to allow the trial court an
opportunity to examine each request to determine whether 1.) Tilr’s RFPs under Civ.R.
34(D) are necessary to ascertain the identity of a potential adverse party, 2.) Tilr’s
interrogatories under R.C. 2317.48 are limited to facts necessary for Tilr to file a
complaint, and 3.) whether Tilr’s requests are necessary following Crenshaw’s
discovery responses.
Reasonable Expenses Under Civ.R. 37
{¶32} In their third assignment of error, Talent & Vora argue that the trial
court erred in awarding attorney’s fees to Tilr. In its decision, the trial court awarded
Tilr reasonable expenses, including attorney’s fees, under Civ.R. 37, because Talent &
Vora “were not substantially justified in filing the Motion for Protective Order nor in
opposing the Motion to Compel.” Trial courts are afforded discretion to issue an award
of reasonable expenses and we review that decision for an abuse of discretion. Pippin
v. Sanderson, 5th Dist. Fairfield No. 2020 CA 00013, 2020-Ohio-4551, ¶ 46.
{¶33} Under Civ.R. 37(A)(5)(a), a trial court granting an order compelling
discovery “shall, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney advising the conduct, or
both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” Relevant here, an award of reasonable expenses is
mandatory unless “the nonmoving party’s response or objection was substantially
justified or other circumstances would render attorney fees unjust.” Civ.R.
35(A)(5)(a)(i)-(iii). Substantial-justification claims are typically fact specific and
reviewed on a case-by-case basis. Koski v. Thunder Struck Transp., LLC, 6th Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Wood No. WD-21-016, 2021-Ohio-4404, ¶ 29. A party’s opposition to discovery is
substantially justified where its objections are reasonable. See id. at ¶ 28 (collecting
federal cases defining “substantially justified” under the federal rule).
{¶34} The trial court awarded Tilr reasonable expenses because Talent &
Vora’s opposition to discovery “was not in response to a genuine dispute.” Specifically,
the trial court reasoned that the issues surrounding the scope of discovery were settled.
But our disposition of Talent & Vora’s second assignment of error makes clear that
their objection to discovery had merit. Talent & Vora’s dispute was reasonable and
substantially justified.
{¶35} Because a trial court lacks discretion to award expenses when the
conduct in question was substantially justified, we agree with Talent & Vora that the
trial court abused its discretion when it awarded Tilr reasonable expenses under Civ.R.
37(A)(5)(a). See Koski at ¶ 35, quoting Pippin at ¶ 47. Thus, we sustain Talent & Vora’s
third assignment of error and reverse the award of reasonable expenses.
III. Conclusion
{¶36} In conclusion, we sustain Talent & Vora’s second assignment of error in
part, and third assignment of error. But we overrule their first assignment of error and
second assignment of error, in part. We reverse the trial court’s order granting Tilr’s
motion to compel and awarding Tilr reasonable expenses. We remand the case with
instructions to consider Tilr’s requests in a manner consistent with this opinion.
Judgment accordingly.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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