Willton NC NY, LLC v. Clark, Schaefer, Hackett & Co.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
WILLTON NC NY, LLC, 	Case No. 1:26-mc-22
Petitioner, 	Judge Matthew W. McFarland
V.
CLARK, SCHAEFER, HACKETT & CO.,
Respondent.
ORDER GRANTING PETITIONER'S MOTION TO ENFORCE SUBPOENA AND
COMPEL DISCOVERY (Doc. 1)
This matter is before the Court on Petitioner's Motion to Enforce Subpoena and
Compel Discovery (Doc. 1). Respondent has filed a Response in Opposition (Doc. 3), to
which Petitioner has filed a Reply in Support (Doc. 6). This matter is thus ripe for the
Court's review. For the following reasons, Petitioner's Motion to Enforce Subpoena and
Compel Discovery (Doc. 1) is GRANTED.
BACKGROUND
Petitioner is the plaintiff in a civil action pending in the Southern District of New
York ("SDNY"). (See SDNY Am. Compl., Doc. 1-1.) In that action, Petitioner alleges that
certain defendants misused and misappropriated funds connected to FM15 Investments,
LLC ("FM15"). (See id.) Respondent, an accounting firm, prepared the audit reports and
tax returns for entities affiliated with FM15. (See, e.g., SDNY Order, Doc. 1-4, Pg. ID 153.)
On April 3, 2025, Petitioner served a Federal Rule of Civil Procedure 45 subpoena
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on Respondent. (Subpoena, Doc. 1-2.) The subpoena requested documents concerning
Respondent's services for the FM15 entities "in their original and/ or native form or
format." (Id. at Pg. ID 85.) After a discovery dispute in which the SDNY issued an order
finding the subpoena relevant and proportional, Respondent began producing materials
in March 2026. (See SDNY Order, Doc. 1-4, Pg. ID 153; Klarfeld Deel., Doc. 1-3, Pg. ID 94-
97.) Between March and April 2026, Respondent produced, among other things, roughly
43,000 pages of audit and tax binders in PDF format. (Klarfeld Deel., Doc. 1-3, Pg. ID 97-
98; Pyper Deel., Doc. 3, Pg. ID 201-204.)
On May 14, 2026, Petitioner sent a deficiency letter addressing format-related
issues with these PDF materials, including missing worksheet context, broken formula
references, and unreadable calculation results. (See Deficiency Letter, Doc. 1-3, Pg. ID 137-
144.) In response, Respondent explained that its auditing software automatically converts
files to PDF format upon export and that the process can cause formatting inconsistencies
and cell-display errors. (Pyper Email, Doc. 1-3, Pg. ID 146-47.)
To address the issue, Respondent offered to upload the binders to an external
server for a 14-day native-format review. (Pyper Email, Doc. 1-3, Pg. ID 146.) However,
Respondent conditioned this access on Petitioner's agreement to "irrevocably commit to
the fact that [Respondent] has complied with [the] subpoena." (Id.) Petitioner declined,
maintaining that it could not concede full compliance before inspecting the native
records. (Klarfeld Email, Doc. 1-3, Pg. ID 149.) When Respondent refused to withdraw
the condition, Petitioner filed this action seeking to enforce its Rule 45 subpoena and
compel production of the native records or secure unconditioned access to the binders
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via the external server. (See Motion, Doc. 1.)
LAW AND ANALYSIS
Rule 45 permits a subpoena to require a nonparty to produce electronically stored
information ("ESI"). Fed. R. Civ. P. 45(a)(l)(A)(iii). Rule 45 incorporates Rule 34's
provisions concerning the form of ESI production. Fed. R. Civ. P. 45(a)(l)(C). "Pursuant
to Rule 34(b)(l)(C), a requesting party is entitled to specify the form or forms in which
[ESI] is to be produced." In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab.
Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012) (citing Fed. R. Civ. P. 34(b)(l)(C)). "The
producing party can object to the requested form of production, and the parties must
meet and confer to negotiate the dispute." Id. (citing Fed. R. Civ. P. 34(b)(2)(D); Fed. R.
Civ. P. 34(b) advisory committee's note, 2006 amendment). "[T]he burden rests with the
objecting party to show undue hardship or expense" to justify producing ESI in a format
other than the native form requested. Id. (collecting cases).
Petitioner is entitled to access the native format of Respondent's audit and tax
binders. 	Petitioner's 	subpoena 	requested 	that 	Respondent 	produce 	responsive
documents in their native format. (Subpoena, Doc. 1-2, Pg. ID 85.) Respondent has not
made that production, nor has it shown that producing the documents in their native
format would impose an undue burden or expense. Instead, Respondent generally asserts
that it has already devoted time, effort, and resources to responding to the subpoena. (See
Response, Doc. 3.) But that argument does not explain why producing the documents in
their native format would be unduly burdensome or expensive. Indeed, Respondent
identifies no estimated costs, personnel time, or technical obstacles that would make such
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production difficult or expensive. (See id.) In fact, Respondent has acknowledged that it
can copy the relevant materials to an external server to allow Petitioner to review
remotely. (Pyper Email, Doc. 1-3, Pg. ID 146.) As Respondent has failed to meet its burden
to demonstrate undue hardship, Petitioner is entitled to access the electronic binders in
their native form.
Respondent has represented that it can provide Petitioner with access to the
electronic binders by uploading copies to an external server, and Petitioner has conveyed
that this method would be satisfactory. (Pyper Email, Doc. 1-3, Pg. ID 146; Motion, Doc.
1, Pg. ID 16.) The Court will therefore order production in that manner. The Court will
not impose Respondent's proposed fourteen-day time limit on that access, as Respondent
has offered no reason why such a restriction is necessary. Nor will the Court require
Petitioner to agree in advance that access to the electronic binders resolves every
remaining issue concerning Respondent's compliance with the subpoena.
The Court thus ORDERS the following:
1. 	Petitioner's Motion to Enforce Subpoena and Compel Discovery (Doc.
1) is GRANTED;
2. 	Petitioner's subpoena of Respondent SHALL BE ENFORCED;
3. 	Within fourteen days of this Order, Respondent is COMPELLED to
provide Petitioner with access to the tax and audit binders through an
external server for review; and
4. 	This matter is TERMINATED from the Court's docket.
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IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOU1HERN DISTRICT OF OHIO
By: ~ 	~i,{~w
JUDGE MATTHEW W. McFARLAND
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