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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

S&S HOLDCO, INC.

Plaintiff,

v.

THREE RIVERS PROVIDER 

NETWORK, INC.

 Defendant.

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Case No. 1:17-cv-00783

Judge William O. Bertelsman

Magistrate Judge Karen L. Litkovitz

PLAINTIFF S&S HOLDCO, INC’S 

REPLY IN SUPPORT OF MOTION TO 

COMPEL DEPOSITION OF BLAINE 

POLLOCK 

TRPN’s opposition serves to confirm Pollock’s managing agent status with TRPN, and the 

elaborate ruse by Pollock and TRPN to create the illusion of Pollock’s separation from TRPN 

while he continues to receive (direct and then indirect) payments from TRPN and continues to 

direct TRPN through his consultation. Indeed, the evidence submitted by both parties makes clear 

that:

(a) TRPN (through its corporate intermediary, “TRPN Direct Pay, Inc.”) now pays 

a Swiss entity created in June 2018, “Direct Pay AG,” on a quarterly basis for 

a purported “license” to use Direct Pay;

(b) Prior to this “licensing” relationship in 2018, TRPN represented to S&S in an 

April 12, 2017 Memorandum of Understanding (MOU) that TRPN solely 

owned Direct Pay, and that it was contracting with S&S to assist in its 

development and implementation;

(c) According to TRPN and Pollock’s own daughter, Pollock is the “creator” of 

Direct Pay, he “solely” developed it, and it is “his” product; 

(d) After this litigation began, Pollock divested his shares in TRPN to his daughters 

and fled the country; 

(e) After Pollock departed, TRPN continued to make direct monthly payments to 

Pollock in 2018, and held an independent contractor relationship with him;

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(f) Direct payments to Pollock eventually ceased in September 2018, just after 

Direct Pay AG and TRPN Direct Pay, Inc. were created, and TRPN began 

making quarterly payments for the “license” to use Direct Pay;

(g) Despite the cessation of direct payments to Pollock in September 2018, Pollock 

continued (and still continues) to operate as a “consultant” for TRPN, including 

with particular respect to Direct Pay, providing advice and direction as to its 

use, hosting periodic meetings and workshops as late as October 2019, and 

discussing Direct Pay “accounts” with TRPN’s Controller, Carla Dower;

(h) Scott Smith claims that TRPN is unaware of Pollock’s current location and does 

not have an address for him, but simultaneously concedes that he is able to 

contact Pollock regarding appearing for a deposition and for providing 

“consultation” to TRPN as to Direct Pay.

Notwithstanding the above, TRPN baselessly asserts that because Pollock has not had a 

formal association with TRPN since September 2018 and has not received direct payments from 

TRPN, he cannot be considered a managing agent under Rule 30. As this Court knows, however, 

the inquiry under Rule 30 is a functional one, “dependent largely on the functions, responsibilities, 

and authority of the individual respecting the subject matter of the litigation.” Libbey Glass v. 

Oneida, Ltd., 197 F.R.D. 342, 350 (N.D. Ohio 1999)(“In any event, it is clear that the deponent 

need not have a formal association with the corporation to be deemed its managing agent.”). Thus, 

“[w]hether a proposed deponent falls into a particular category of employees or agents is therefore 

less relevant than the individual’s specific functions and authority.” Id. Further, where the 

examining party provides “enough evidence to show that there is at least a close question as to 

whether the proposed deponent is a managing agent,” a court should accord managing agent status. 

See Stacey v. ZF Lemforder Corp., No. 05-CV-72777-DT, 2007 U.S. Dist. LEXIS 4569, at *6 

(E.D. Mich. Jan. 23, 2007) citing United States v. Afram Lines, Ltd., 159 F.R.D. 408, 413 

(S.D.N.Y. 1994).

Here, the question as to whether Pollock can be deemed a managing agent of TRPN for 

purposes of this litigation is not a close one. Pollock is TRPN’s founder and former President/CEO, 

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a central witness to this lawsuit, and the purported “creator” and “developer” of Direct Pay (the 

software at issue). He also continues to act as a “consultant” for TRPN with respect to Direct Pay, 

and is receiving payments for that work through corporate intermediaries. Given the centrality of 

both Pollock and Direct Pay to this litigation, and Pollock’s continued functions and authority over 

the product at issue and its use by TRPN, TRPN should be compelled to produce him as a 

managing agent for purposes of this litigation.

I. S&S’ Motion to Compel is not “mooted” by its Motion for Leave to Amend

Without citing any law in support, TRPN initially tries to avoid the merits of this motion 

to compel by claiming it is “mooted” by S&S’ motion for leave to add Pollock as a party. That is 

wrong, and in no way supported by the plain language of Rule 30. 

Rule 30 allows a party to depose any person, including a party, without leave of court 

except as provided in Rule 30(a)(2). Fed. R. Civ. P. 30(a)(1). While a deponent’s attendance may 

be compelled by subpoena under Fed. R. Civ. P. 45, “a subpoena is not necessary if the person to 

be examined is a party or an officer, director, or managing agent of a party.” Jacobs v. Floorco 

Enters., No. 3:17-CV-90-RGJ-CHL, 2020 U.S. Dist. LEXIS 46921, at *46 (W.D. Ky. Mar. 18, 

2020)(emphasis added). Instead, “if a corporation is a party, the deposition notice compels it to 

produce any officer, director or managing agent named in the notice.” Id. (emphasis added).

In other words, the “person” can be compelled to testify without subpoena if they are (a) a 

party; or (b) an officer, director, or managing agent of a party. It can be either, or it can be both. 

Here, Pollock is a managing agent of TRPN, and he may later become a party to this litigation. 

Either way, his status as a managing agent of TRPN obligates TRPN to produce him for deposition. 

TRPN’s arguments to the contrary are baseless. 

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II. TRPN’s explanations regarding Direct Pay AG and TRPN’s licensing 

arrangement with this Swiss entity simply highlights the deceptive way through

which payments to Pollock continue to be made.

TRPN admits that TRPN Direct Pay was created in 2018 for the purpose of utilizing the 

software “Direct Pay.” However, TRPN now explains that Direct Pay is not actually owned by 

TRPN or TRPN Direct Pay, but is instead owned by a Swiss Company, “Direct Pay AG,” through 

which TRPN (via its corporate intermediary, TRPN Direct Pay) licenses its use in exchange for 

quarterly payments. 

Notwithstanding TRPN’s attempts to distance itself from Pollock and Direct Pay, it is clear 

that Direct Pay AG is nothing more than yet another corporate intermediary through which 

payments to Pollock are made.

First, TRPN’s disclaimer of any ownership interest in Direct Pay is telling given that TRPN 

repeatedly asserted in 2017 that they were the sole owner of the concept. Indeed, in the April 12, 

2017 Memorandum of Understanding (MOU) between S&S and TRPN, TRPN emphasized that:

• The parties intend to enter into an agreement in which TRPN and S&S will 

cooperate to complete the implementation of the TRPN technology and concept 

known as “Direct Pay product;”

• TRPN is in the process of filing for a U.S. Patent for patent rights of its Direct Pay 

product;

• In return for S&S’ assistance and resources in developing and implementing its 

Direct Pay product, shall establish a percentage of revenue share received by TRPN 

from the Direct Pay product, percentage of revenue share to be determined at a later 

date; and

• Both parties intend to work together to implement TRPN’s Direct Pay line of 

products.

(See Second Amended Complaint, Exhibit 1, Doc#61-1, PAGEID 336). The MOU’s “Binding 

Provisions,” further provide that “TRPN owns the right to its Direct Pay product exclusively, and 

S&S will not utilize this product and/or concept and develop it outside of the TRPN and S&S 

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relationship.” (Id.). Given the above, it is unclear why TRPN would now pay a Swiss entity on a 

quarterly basis for a license to use its own product. 

Further compounding this confusion is testimony by Pollock’s own daughter in May 2019 

(Jennifer Roberts), that Pollock is the purported creator and developer of Direct Pay, and that it is 

his product:

Roberts: “...[Pollock] is a consultant for our company.”

Counsel: “A consultant of what?”

Roberts: “When people have questions about – like, Direct Pay, that’s his 

product. He developed it.”

Counsel: “And so he will tell people how to develop the product Direct 

Pay?”

Roberts: “No, he created the product Direct Pay.”

Counsel: “So will he provide instruction to TRPN employees into how to 

develop that product?

Roberts: “The product is developed already. If they have questions on how 

it works, then he’ll answer them.

Counsel: “Did he assist with the development?

Roberts: “He developed the product, so yes.

Counsel: “So he solely developed the product?”

Roberts: “Yes.”

(See Exhibit 23 to Prior Affidavit of Counsel, Doc #81-1, PAGEID 581-582). Again, if this is 

Pollock’s product, it is unclear why TRPN is paying a supposedly unrelated Swiss entity for a 

license to use it.

Next is the suspect timing of Direct Pay AG and TRPN Direct Pay’s creation, immediately 

prior of TRPN’s ceasing of direct monthly payments to Pollock. Indeed, public records indicate 

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that Direct Pay AG was formed on June 14, 2018 (at roughly the same time as TRPN Direct Pay, 

Inc.), with the purpose of holding “shares in companies, companies at home and abroad of all 

kinds, as well as to provide services to those involved, to manage and market them and to hold 

licenses, patents, trademarks and rights of all kinds.”

1

(See Exhibit 1-2 of Current Smith Aff., 

attached as Exhibit A). 

Up to this point, Pollock had been receiving direct monthly wire transfers from TRPN in 

the amount of $21,153.85. (See Scott Smith Dec., ¶ 24 and Exhibit 3, Doc#85-1, PAGEID 847, 

853-854). Beginning in September 2018, however (two months after Direct Pay AG’s and TRPN 

Direct Pay’s creation), the direct monthly payments to Pollock ceased, and the quarterly payments 

to Direct Pay AG from TRPN Direct Pay began. Notably, however, payment records show one 

more payment (appearing to be quarterly) is made to Pollock in February 2019, in the amount of 

$78,405.45. (Id.). That payment is then reversed on the same day without explanation. (Id.). 

TRPN’s Controller, Carla Dower, confirmed via deposition testimony that the above was 

simply a discrete way to continue paying Pollock. Specifically, Dower testified that TRPN makes 

payments to Pollock, that those were recently changed from monthly to quarterly, and that Pollock 

is entitled to such payments “in the future.” (See Prior Counsel Affidavit., Exhibit 8, Doc#81-1, 

PAGEID 478-480). Months later, Ms. Dower submitted a contradictory declaration in response to 

a motion to compel Pollock in the Qiu Litigation, claiming she was “confused” on the issue of 

payments in her April 2019 testimony, and that TRPN actually does not make any payments to 

Pollock. (See Scott Smith Dec., Exhibit 4, Doc#85-1, PAGEID 855-866). However, Dower never 

explains (i) the basis for her “confusion,” (ii) what quarterly payments she was referring to, nor 

1 This is a translation from German to English based upon the publicly available “purpose” provided on 

Switzerland’s Central Business Name Index. A copy of this information (in German) is attached as Exhibit 1 to the 

Smith Affidavit, as is the translation (Exhibit 2). 

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(iii) whether Pollock receives indirect payments from TRPN (i.e., through TRPN Direct Pay and/or 

Direct Pay AG). Clearly, her confusion arose from the way in which the payments to Pollock were 

actually being made (i.e., through corporate intermediaries), and her only mistake was implying 

that TRPN directly pays Pollock.

Finally, is the undisputed testimony as to Pollock’s continued “consulting” relationship 

with TRPN, in which he continues “to consult on various issues as they arise related to the Direct 

Pay product.” (See Scott Smith Dec., ¶ 30, Doc#85-1 PAGEID 848). This includes attending Direct 

Pay “workshops,” providing “guidance” on how Direct Pay works, speaking with TRPN’s 

controller regarding accounts for a separate Direct Pay entity, hosting twice-annual “planning 

conferences” in Italy, providing direction to TRPN’s controller, making managerial decision 

through TRPN’s CEO (Scott Smith), and making frequent periodic phone calls to various TRPN 

employees, including its IT consultant. (See Motion to Compel (reciting evidence), Doc#81, 

PAGEID 440-441). It is beyond belief that Pollock would engage in such activities for a product 

he supposedly created and developed, and yet have no form of compensation for assisting with 

that product in the future. 

Given the above, it is readily apparent that TRPN’s “licensing” arrangement with Direct 

Pay AG is nothing more than a discrete way of continuing to pay Pollock for his continued actions 

as TRPN’s managing agent, with particular respect to Direct Pay. As confirmed by Pollock’s 

daughter, Direct Pay is Pollock’s product, and TRPN now pays quarterly for its use. For TRPN to 

now claim that (i) they have no further relationship/contact with Pollock, (ii) they merely license 

Direct Pay from a Swiss entity formed in 2018, and (iii) they have “no knowledge related to the 

formation, ownership, or operation of Direct Pay AG” is simply nonsensical and belied by the 

facts. 

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III. The Superior Court of California’s conclusion on a motion to compel Pollock in 

the Qiu Litigation provides further support for Pollock’s managing agent status 

in this litigation.

TRPN also asserts (wrongly) that the decision in the Qiu Litigation denying plaintiff’s 

motion to compel warrants the same result here. A review of that decision, however, makes clear 

that it is entirely distinguishable, and in fact supports S&S’ position, not TRPN’s. 

In denying the motion to compel, the Qiu Court recited various evidence that Pollock 

remains heavily involved with TRPN as to a product called Direct Pay, including through periodic 

workshops, quarterly payments through a “separate entity,” and management and implementation 

of the product: 

The evidence indicates that more recently Mr. Pollock has been involved in a 

product he developed called Direct Pay. A separate entity owns Direct Pay and 

TRPN licenses its use through that separate entity. According to Ms. Turner (the 

person designated as most qualified to testify about Mr. Pollock’s past and present 

relationship with TRPN), the last time Mr. Pollock gave her instruction relating to 

TRPN was in January 2019 at a workshop regarding launching the Direct Pay 

product. Controller Ms. Dower testified that Mr. Pollock referred to himself as a 

consultant to TRPN. The last conversation Ms. Dower had with Mr. Pollock was 

the same week as her deposition, in which they spoke about a Direct Pay bank 

account with Citi Bank. 

Quarterly payments are made by TRPN for TRPN’s use of Direct Pay. Defendant 

has not identified the separate entity [which] owns Direct Pay, but the evidence 

implies that Mr. Pollock is involved with the separate entity, hence the 

testimony that the quarterly payments are made to Mr. Pollock as opposed to 

the separate entity.

(See Doc#86-1, PAGEID 915). However, despite this evidence the Qiu court declined to compel 

TRPN to produce Pollock, given that the evidence only related to Direct Pay, not to Pollock’s 

continued exercise of judgment and discretion over other corporate matters relevant to the 

wrongful termination action:

Plaintiff has not demonstrated that Mr. Pollock exercised judgment and discretion 

in dealing with TRPN’s corporate matters as of January 24, 2019 or thereafter. The 

evidence only shows that Mr. Pollock is involved with management and 

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implementation of Direct Pay, a product TRPN licenses for use in its 

operations.

(Id.). In other words, had the subject matter of the Qiu Litigation involved the development and 

implementation of Direct Pay, the result would certainly have been different, especially if it had 

been pending in federal court. See Stacey v. ZF Lemforder Corp., No. 05-CV-72777-DT, 2007 

U.S. Dist. LEXIS 4569, at *5 (E.D. Mich. Jan. 23, 2007)(emphasis in original)(“Courts generally 

hold that whether a deponent is a managing agent is dependent largely on the functions, 

responsibilities and authority of the individual involved respecting the subject matter of the 

litigation.”); Campbell v. Detert, No. 11-642-ES-SCM, 2013 U.S. Dist. LEXIS 45981, at *40 

(D.N.J. Mar. 28, 2013)(emphasis added)(“The inquiry regarding the identification of a managing 

agent essentially involves the extent of the individual’s decision-making discretion and 

unsupervised authority, the degree to which his interests converge with those o the corporation, 

and his general responsibilities, particularly with regard to the matters at issue in the litigation.”).

IV. TRPN misapplies the law as to managing agents under Rule 30, claiming that 

Pollock generally cannot be a managing agent because he is not a formal officer, 

director, or employee of TRPN.

TRPN also proposes an unsupported general rule that former officers, directors, and 

employees of an organization cannot be managing agents absent specific exceptions. (See Memo 

in Opp, Doc#85, PAGEID 835)(“Generally, former officers, directors, and employees of an 

organization cannot be managing agents for purposes of compelling deposition testimony.”). But 

that is not the rule in this circuit or any other, and TRPN’s attempts to insert it here are unavailing.

As explained in Stacey, the standard for determining managing agent status, “like so many 

others in the law, remains a functional one to be determined largely on a case-by-case basis.” 

Stacey v. ZF Lemforder Corp., No. 05-CV-72777-DT, 2007 U.S. Dist. LEXIS 4569, at *5 (E.D. 

Mich. Jan. 23, 2007) citing Libbey Glass, Inc., 197 F.R.D. at 349. The inquiry relies not upon 

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“whether a deponent falls into a particular category of employees or agents[;]” rather, it is 

“dependent largely on the functions, responsibilities, and authority of the individual respecting the 

subject matter of the litigation.” Id. “The examining party has the burden of providing enough 

evidence to show that there is at least a close question whether the proposed deponent is a 

managing agent.” Stacey v. ZF Lemforder Corp., No. 05-CV-72777-DT, 2007 U.S. Dist. LEXIS 

4569, at *6 (E.D. Mich. Jan. 23, 2007) citing United states v. Afram Lines, Ltd., 159 F.R.D. 408, 

413 (S.D.N.Y. 1994). However, “doubts about an individual’s status as such at the pre-trial 

discovery stage are resolved in favor of the examining party.” Maggard v. Essar Glob. Ltd., No. 

2:12cv00031, 2013 U.S. Dist. LEXIS 166868, at *4 (W.D. Va. Nov. 25, 2013)

Here, Pollock has clearly continued to maintain functions, responsibilities, and authority 

with particular respect to Direct Pay. He certainly did so at the time his deposition was noticed in 

November 2019, given that he had just hosted TRPN employees in Europe in the month prior, and 

had continually been acting as a consultant. 

Moreover, Pollock’s continued functions, responsibilities, and authority with TRPN 

particularly concern an area central to this litigation. Specifically, the development and 

implementation of Direct Pay, which S&S devoted significant resources to in 2017 for which it 

was never compensated. TRPN now concedes that Direct Pay is “Pollock’s” product, that he 

created it, and that TRPN licenses the use of it through a Swiss entity in exchange for quarterly 

payments. The question as to whether Pollock remains a managing agent of TRPN with respect to 

Direct Pay is not close, but even if it is, that warrants a finding in favor of S&S.

V. Conclusion

For the foregoing reasons, Plaintiff S&S Holdco, Inc. respectfully requests that this Court: 

1. Compel Defendant Three Rivers Provider Network, Inc. (“TRPN”) to produce 

its managing agent Blaine Pollock for deposition;

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2. Order TRPN to pay Plaintiff’s reasonable costs, including attorney’s fees, 

associated with this motion to compel; and

3. To the extent TRPN continues to refuse or otherwise fail to produce Pollock for 

deposition, issue sanctions against TRPN under Fed. R. Civ. P. 37(b)(2)(A) or 

as this Court otherwise deems just.

Respectfully submitted,

/s/ Peter A. Saba

Peter A. Saba (0055535)

Jeffrey M. Nye (0082247)

Joshua M. Smith (0092360)

STAGNARO, SABA

& PATTERSON CO., L.P.A.

2623 Erie Avenue

Cincinnati, Ohio 45208

(513) 533-2701

(513) 533-2711 (fax)

pas@sspfirm.com

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was served on all counsel of record 

via CM/ECF this 1st day of March, 2021.

/s/ Peter A. Saba

Peter A. Saba (0055535)

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