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Ray v. Jacquemain6/26/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Non-party Appellant Akron Square Chiropractic has appealed from a judgment entry of the Summit County Court of Common Pleas that sanctioned it and ordered it to produce documents. This Court reverses and remands.
I.
This appeal stems from a personal injury complaint filed by Plaintiff-Appellee Wade Ray against Defendant-Appellee Marcus Jacquemain. During discovery, Jacquemain filed a notice to take the deposition of the business/office manager of Appellant Akron Square Chiropractic ("ASC"). A subpoena was issued for the business/office manager of ASC ("manager") to appear for a deposition on September 28, 2001. Neither the notice to parties to take the deposition nor the subpoena listed a name for the manager or described any material that should be brought to the deposition. Beyond the case caption, the subject matter of the deposition was undisclosed in the subpoena. However, ASC filed a motion to quash the subpoena claiming that any information desired was not discoverable, did not bear on the treatment or care of Ray, and included privileged information.
No one from ASC attended the deposition. On October 3, 2001, Jacquemain filed a brief in opposition to the motion to quash the subpoena. He claimed the issue of the discoverability of information and/or records was previously resolved at a pre-trial hearing in late August 2001. However, the record is void of any evidence of the pre-trial conference Jacquemain asserts took place in August 2001. Further, ASC has pointed out that it did not become involved in this case until September 2001. Thus, any agreement at such a pre-trial conference between the parties and the court that non-party ASC be required to disclose specific information through testimony and/or by delivery of office or patient records would not put ASC or its office manager on notice to provide such information. Nor would any such agreement function as a Civ.R. 45 subpoena or discovery request. On October 9, 2001, Jacquemain filed a motion for sanctions against ASC because its manager did not attend the deposition and for an order compelling the manager to appear for a deposition. In the meantime, the arbitrators in the underlying personal injury action found in favor of Ray.
On October 15, 2001, without waiting the ten days allotted to ASC to respond to the motion for sanctions and without waiting the required fourteen days before issuing a ruling under Loc.R. 7.14(a), the trial court ordered the manager to appear on October 24, 2001 and show cause as to why he should not be held in contempt for failing to attend the deposition, and to appear for a deposition to be conducted at the show cause hearing. In addition, although not requested by Jacquemain in his motion for sanctions or otherwise requested under Civ.R. 45(A), the trial court sua sponte ordered the manager to bring to the contempt hearing all books and records showing the business practices of ASC, including any attorney referrals. On October 17, 2001, ASC filed a motion to strike the motion for sanctions, asserting that the trial court had not ruled on the motion to quash the subpoena and, therefore, the motion for sanctions was untimely.
On October 24, 2001, Dr. Carder, a chiropractor at ASC, appeared at the show cause hearing without any documents. At the start of the hearing, the trial court denied ASC's motion to quash the subpoena. During the hearing, Dr. Carder testified that he serves as the doctor-on-call/manager of ASC. After questioning Dr. Carder, the trial court ordered ASC
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