IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

NORA HARDING, 

 Plaintiff, 

 vs. Civil Action 2:11-CV-244 

 Judge Sargus 

 Magistrate Judge King 

TRANSFORCE, INC., et al., 

 Defendants. 

OPINION AND ORDER 

 This matter is before the Court on the Motion of Yusen Logistics 

(Americas), Inc. to Compel Discovery of a Settlement Agreement between 

Plaintiff and Mars (“Motion to Compel”), Doc. No. 62. Defendant Yusen 

Logistics (Americas), Inc. (“NYK”) seeks discovery of the settlement 

agreement between plaintiff Nora Harding and defendants Mars Petcare 

US, Inc., and Kal Kan Foods, Inc. Id. at p. 1. The Court previously 

granted defendant’s Motion to Compel as unopposed, see Order, Doc. No. 

63, and plaintiff filed a motion to reconsider, seeking leave to file 

a response out of rule. Plaintiff’s Motion for Reconsideration and 

Memorandum Contra to Defendant NYK’s Motion to Compel, Doc. No. 64. 

On April 29, 2013, the Court granted plaintiff leave to file a 

response to NYK’s Motion to Compel. Opinion and Order, Doc. No. 70. 

At the direction of the Court, plaintiff’s motion for reconsideration 

has been filed as Plaintiff’s Memorandum in Opposition to Defendants’ 

Motion to Compel (“Plaintiff’s Response”), Doc. No. 71. For the 

reasons that follow, NYK’s Motion to Compel is GRANTED. 

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I. Background 

This Court has previously set forth the background of this case: 

Plaintiff Nora Harding filed this action individually and 

as administrator of the estate of her husband, Mark A. 

Harding, who was an employee of defendant Transforce, Inc. 

when he was killed on February 12, 2009, in a tragic 

accident that occurred during the scope of his 

employment. . . . 

. . . 

Transforce and Defendant NYK entered into a contractual 

relationship in August 2007, for Transforce to provide 

personnel to NYK for the “operation of transportation or 

other equipment.” (Service Agreement at 1; Doc. No. 52-

2.) . . . 

In February 2009, NYK was in a contractual relationship 

with Defendant Mars Petcare. In accordance with that 

contract, NYK provided to Mars Petcare “spotting and 

shuttle services,” i.e., moving semi tractor-trailers 

around the warehouse yard, at the Mars Petcare facility 

located in Columbus, Ohio. (Mars Petcare Rep. Melissa Muth 

Dep. at 34; Doc. No. 49 at 12.) NYK employed a Drop Lot 

Coordinator whom it assigned to the Mars Petcare location. 

The Drop Lot Coordinator would be informed by a Mars 

Petcare dispatcher when a semi tractor-trailer was full and 

the Coordinator then dispatched direction to the NYK and/or 

Transforce yard truck operators to move that trailer. 

On February 12, 2009, pursuant to the contract between 

Transforce and NYK and the contract between NYK and Mars 

Petcare, Mr. Harding and another Transforce employee, 

Defendant Paul E. Lay, were working at the Columbus Mars 

Petcare facility as yard truck operators. Mr. Harding had 

completed his work shift and was walking across the yard to 

his personal vehicle when he was struck and killed by the 

yard truck driven by Mr. Lay. . . . 

 

On February 11, 2011, Plaintiff filed the instant action in 

the Franklin County, Ohio Court of Common Pleas. Plaintiff 

named as defendants Transforce, Mr. Lay, Kal Kan Foods, 

Inc., Mars Petcare and NYK. On March 18, 2011, Defendants 

jointly removed the action to this Court based upon 

diversity jurisdiction. 

Opinion and Order, Doc. No. 68, pp. 1-3. 

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 The claims against Mr. Lay were dismissed on February 27, 2012. 

Opinion and Order, Doc. No. 35. Plaintiff stipulated to the dismissal 

of Transforce, Inc., on April 11, 2012, Doc. No. 40, and to the 

dismissal of Mars Petcare US, Inc., and Kal Kan Foods, Inc., on July 

25, 2012, Doc. No. 58. The only claims remaining are those against 

NYK – i.e., negligence, negligent hiring, training, and/or supervision 

and business invitee liability. The Court denied plaintiff’s and 

NYK’s motions for summary judgment on these claims on March 26, 2013. 

Opinion and Order, Doc. No. 68. A trial by jury is scheduled to begin 

on July 8, 2013. Order Setting Trial Date and Settlement Conference, 

Doc. No. 67. 

II. Standard 

Rule 37 of the Federal Rules of Civil Procedure authorizes a 

motion to compel discovery when a party fails to provide a proper 

response to requests for production of documents under Rule 34. Fed. 

R. Civ. Pro. 37(a)(3)(B). “The proponent of a motion to compel 

discovery bears the initial burden of proving that the information 

sought is relevant.” Martin v. Select Portfolio Serving Holding 

Corp., No. 1:05–cv–273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio 

Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186 

F.R.D. 154, 159 (D.D.C. 1999)). 

Rule 26(b) provides that “[p]arties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party’s 

claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance for discovery 

purposes is extremely broad. Lewis v. ACB Bus. Servs., Inc., 135 

F.3d 389, 402 (6th Cir. 1998). “The scope of examination permitted 

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under Rule 26(b) is broader than that permitted at trial. The test is 

whether the line of interrogation is reasonably calculated to lead to 

the discovery of admissible evidence.” Mellon v. Cooper-Jarrett, 

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970). However, “district courts 

have discretion to limit the scope of discovery where the information 

sought is overly broad or would prove unduly burdensome to produce.” 

Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 

(6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)). See also Lewis, 

135 F.3d at 402 (determining the proper scope of discovery falls 

within the broad discretion of the trial court). 

Finally, the party moving to compel discovery must certify that 

it “has in good faith conferred or attempted to confer with the person 

or party failing to make disclosure or discovery in an effort to 

obtain it without court action.” Fed. R. Civ. P. 37(a)(1). See also

S.D. Ohio Civ. R. 37.2. 

III. Discussion 

NYK’s Motion to Compel is technically deficient because it does 

not contain a certification that NYK has in good faith conferred or 

attempted to confer with plaintiff in an effort to obtain the disputed 

discovery without court action. NYK’s Motion to Compel also fails to 

establish that a formal discovery request was ever issued to plaintiff 

or that the actual settlement agreement was ever requested. See 

Motion to Compel, p. 2 (“[NYK] has on three occasions requested from 

Plaintiff the amount of the settlement, to no avail. The first 

happening was orally at the settlement conference held on June 19, 

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2012 and most recently via electronic messages sent on September 24, 

2012 and November 1, 2012.”). Cf. Plaintiff’s Response, p. 7 (“NYK 

never issued any form of discovery requests to Plaintiff Harding. It 

did not seek interrogatories, requests for admissions and/or request 

for production of documents.”). 

Despite these technical deficiencies in NYK’s Motion to Compel, 

the parties agree that the production of the actual settlement 

agreement is at issue and it is clear to the Court that the parties 

have reached impasse in their attempts to resolve their dispute. 

Considering the impending trial date and the parties’ opposing 

positions on the relevance of the settlement agreement, the Court 

concludes that its discretion is better exercised in determining 

whether the settlement agreement is discoverable. 

NYK contends that the settlement agreement is relevant to the 

“issue of damages” and that it “bear[s] on the apportionment of 

damages should the case proceed to trial.” Motion to Compel, pp. 1-3 

Plaintiff responds, first, that NYK’s discovery request is untimely 

because it was made after the conclusion of the discovery completion 

deadline. Plaintiff’s Response, p. 3. The Preliminary Pretrial 

Order, Doc. No. 20, required that all non-expert discovery be 

completed by February 13, 2012; NYK did not request production of the 

settlement agreement until September 24, 2012. See Motion to Compel, 

p. 2. Because NYK did not seek discovery of the settlement agreement 

during the discovery period, it must now demonstrate “good cause” and 

obtain “the judge’s consent” to modify the Court’s scheduling order. 

See Fed. R. Civ. P. 16(b). Good cause exists here because, as NYK 

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argues and plaintiff does not dispute, the settlement agreement was 

not executed until June 25, 2012 – i.e., more than four months after 

the close of non-expert discovery. See Motion to Compel, p. 2. NYK’s 

discovery request is therefore not fatally untimely. 

 Plaintiff next argues that, pursuant to the set-off requirements 

of O.R.C. § 2307.28, the relevance of the settlement agreement is 

contingent on a jury verdict against NYK at trial. Plaintiff’s 

Response, pp. 4-5. Specifically, plaintiff argues that, 

[b]ecause such a determination will not be made until after 

trial, it follows that the settlement agreement cannot lead 

to the production of evidence admissible at trial, as 

required by Rule 26(b)(1). Because both the existence and 

calculation of Defendant NYK’s potential set-off right 

under §2307.28 are wholly dependent on a jury determination 

of Defendant NYK’s liability, it would be premature to deem 

the settlement agreement relevant to a right of set-off 

that is entirely contingent, and will remain so [until] 

after the conclusion of trial. 

Id. (emphasis in original). 

Discovery, however, is not limited to information likely to lead 

to the discovery of only evidence admissible at trial.1

 Rather, the 

Federal Rules of Civil Procedure permit discovery “regarding any 

nonprivileged matter that is relevant to any party’s claim or defense 

. . . .” Fed. R. Civ. P. 26(b)(1). Information is relevant, for this 

purpose, if it “appears reasonably calculated to lead to the discovery 

of admissible evidence.” Id. 

 

1

 For example, Rule 26 requires the production at the outset of the case of 

“any insurance agreement under which an insurance business may be liable to 

satisfy all or part of a possible judgment in the action . . . .” Fed. R. 

Civ. P. 26(a)(1)(A)(iv). This production requirement exists regardless of 

the admissibility of that information at trial. See Fed. R. Evid. 411 

(generally prohibiting evidence of liability insurance at trial). The 

drafters of the rules recognize that discovery of such information “will 

enable counsel for both sides to make the same realistic appraisal of the 

case, so that settlement and litigation strategy are based on knowledge and 

not speculation.” Fed. R. Civ. P. 26(b)(2) advisory committee note (1970). 

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Plaintiff concedes that the settlement agreement will become 

relevant if judgment is rendered against NYK and if Mars Petcare US, 

Inc., is also determined to be liable in connection with Mr. Harding’s 

death. See Plaintiff’s Response, pp. 5-7. In that event, plaintiff 

acknowledges, NYK will have a right of set-off under O.R.C. § 2307.28. 

Id. at 5. Under these circumstances, it cannot be denied that the 

settlement agreement is relevant to NYK’s claim or defense, see Fed. 

R. Civ. P. 26(b)(1), and is therefore discoverable. 

Finally,2

 plaintiff argues that disclosure of the settlement 

agreement should not be required because the agreement contains a 

confidentiality provision. See id. at p. 4. A confidentiality 

privilege generally applies to the substance of communications made 

during negotiations that result in a confidential settlement 

agreement. See Goodyear Tire & Rubber Co. v. Chiles Power Supply, 

Inc., 332 F.3d 976, 980–81 (6th Cir. 2003). That privilege does not 

apply here because the settlement agreement does not, presumably, 

disclose the settling parties’ negotiations. “̔Simply put, litigants 

may not shield otherwise discoverable information from disclosure to 

others merely by agreeing to maintain its confidentiality.’” Gardiner 

v. Kelowna Flightcraft, Ltd., No. 2:10-cv-947, 2011 WL 1990564, at *1 

(S.D. Ohio May 23, 2011) (quoting Oberthaler v. Ameristep Corp., No. 

5:08-cv-1613, 2010 WL 1506908, at *1 (N.D. Ohio Apr. 13, 2010)). 

WHEREFORE, based on the foregoing, NYK’s Motion to Compel, Doc. 

No. 62, is GRANTED. 

 

2

 Plaintiff also objected to production of the settlement agreement in light 

of the pendency of the motions for summary judgment. Those motions have now 

been resolved. Opinion and Order, Doc. No. 68. 

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Plaintiff is ORDERED to produce to NYK, within seven (7) days, 

the settlement agreement between her and defendants Mars Petcare US, 

Inc., and Kal Kan Foods, Inc. 

May 1, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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