1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREAT SOUTHLAND LIMITED,

Plaintiff,

v.

LANDASH CORPORATION, et al.

 Defendants. 

:

:

:

:

:

:

:

:

:

Case No.: 2:17-CV-719

Judge Sarah D. Morrison

Magistrate Judge Jolson

OPINION AND ORDER

This matter is before the Court pursuant to the Objection of Defendants XPO 

Logistics, Inc. and XPO Global Forwarding (collectively, “XPO”) (ECF No. 184) to 

Magistrate Judge Jolson’s January 21, 2021 Opinion and Order (“Order”) (ECF No. 

182) allowing the deposition of XPO Logistics’ CEO and Chairman, Brad Jacobs, 

and his Chief of Staff, Catherine Friedman, to proceed. XPO requests oral argument 

on its Objection. (ECF No. 184, PageID 2526.) Plaintiff Great Southland Limited 

(“GSL”) filed its Opposition (ECF No. 188), and XPO filed a Motion for Leave to File 

Reply in Support of its Objection to Magistrate Judge’s Order (ECF No. 189). GSL 

opposed XPO’s Motion for Leave. (ECF No. 190.) 

After due consideration, XPO’s Objection is OVERRULED, its request for oral 

argument is DENIED, and its Motion for Leave is DENIED. 

I. BACKGROUND

This case involves a ponzi scheme centered upon the sale of off-the-road 

mining tires. In March 2016, GSL loaned $2.5 million to Defendant Landash 
2

Corporation to fund the purchase of thirty-six such tires. (ECF No. 144 ¶ ¶ 46-47.) 

Prior to disbursing the funds, GSL’s representative visited XPO’s Houston location. 

While there, Defendant Afif Baltagi, a XPO employee, showed the representative

the space where the tires would be stored pending resale. 

One month later, Afif Baltagi told GSL the tires had arrived and were being 

stored at XPO’s warehouse. GSL alleges that was a lie. Landash thereafter failed to 

repay the loan, and this suit followed. 

GSL sought to depose Mr. Jacobs and Ms. Friedman due to an e-mail thread

among them; Baltagi; Jo-Ann Erhard, an employee of non-party Star Funding1; 

Dominick Muzi, XPO Global’s President at the time in focus; and Ian Oliver, XPO 

Global’s Vice-President of Operations. The Magistrate aptly described the e-mails as 

follows: 

In April 2015, Jo-Ann Erhard of Star Funding emailed Defendant 

Baltagi regarding the status of Star Funding’s 36 tires at the 

Warehouse. (See Doc. 180-2). Unable to get a direct answer from Mr. 

Baltagi, Ms. Erhard grew suspicious about the tires’ whereabouts. (See

id.). The correspondence grew increasingly tense, and on May 6, 2016, 

Mr. Jacobs’ assistant, Ms. Friedman, forwarded the email chain to Mr. 

Baltagi’s supervisor, Dominick Muzi [stating “it looks like this is 

getting out of hand. Please can you step in? Many thanks.”] (See Doc.

180- 3). Mr. Muzi then wrote to Defendant Baltagi, “Please note Brad 

[Jacobs] is on this email chain and asked me to get involved. Can you 

please resolve this!!!” (See Doc. 180-2). Defendant Baltagi responded 

curtly, “I am.” (Id.). Another of his supervisors, Ian Oliver, Vice 

President of Operations, asked Defendant Baltagi whether he was 

“responding to Jo-Ann’s questions.” (Id.). Seemingly exasperated by 

Mr. Muzi’s and Oliver’s questioning, Defendant Baltagi wrote back,

“Come on guys really?” (Id.). Mr. Oliver responded, “Afif when Brad 

1 Star Funding also loaned Landash money to purchase off-the-road tires 

with similar results.
3

[Jacobs] starts question[ing] us we have to question you. We need to be 

able to provide answers.” (Id.).

(ECF No. 182, PageID 2517-18.) 

From this, GSL argued Mr. Jacobs possessed “knowledge regarding issues 

pertaining to Mr. Baltagi’s activities and the unauthorized release of tires that XPO 

was holding for Star Funding, Inc.” (ECF No. 180, PageID 2247.) Specifically, GSL 

asserted that the e-mails show that Mr. Jacobs “was involved in the attempts to 

resolve XPO’s issue with Star Funding as he raised questions regarding the 

situation and asked Mr. Muzi to get involved to try and resolve the issues.” (ECF 

No. 180-1, PageID 2249.) As to Ms. Friedman, GSL asserted that because she was 

not listed as a recipient on the e-mail chain, “she would only have knowledge of the 

matter if she communicated with Mr. Jacobs.” Id. Accordingly, GSL sought to 

depose both as persons with knowledge relevant to GSL’s respondeat superior 

claims against XPO as Baltagi’s employer.2

XPO objected, arguing that neither should be required to sit for a deposition 

for four reasons. First, both proposed deponents held important positions at a multibillion dollar company. (ECF No. 181, PageID 2275.) Second, the e-mail thread was 

irrelevant because it did not address the tires at issue in this case and transpired 

after GFL made the decision to loan Landash money. (ECF No. 181, PageID 2275.) 

Third, the depositions were meant to harass. Id. at 2275-2276. Fourth, and finally, 

2 GSL did not issue formal notices of deposition because it knew the “dispute 

regarding the deposition[s] needed to be resolved by the Court.” (ECF No. 180, 

PageID 2247.)
4

GSL’s request to depose Mr. Jacobs and Ms. Friedman was untimely. Id. at PageID 

2276. In support, XPO offered the Declarations of its counsel, Mr. Muzi, and Issac 

Graham, XPO’s Director of End User Computer Services. (ECF No. 181, Exs. A-C.)

Magistrate Jolson determined that GSL met its burden of establishing that 

Mr. Jacobs had “‘unique personal knowledge of the matters at issue and that there 

[we]re no less burdensome ways of obtaining the same information.’” (ECF No. 182, 

PageID 2517)(quoting Curtis v. Alcoa, Inc., No. 3:06-CV-448, 2008 WL 11342549, at

*3 (E.D. Tenn. Aug. 27, 2008) (collecting cases)). In particular, the e-mail thread 

“suggest[ed] that Mr. Jacobs read the correspondence, developed concerns, and 

raised those concerns with Defendant Baltagi’s supervisors.” Id. at 2518-19. She 

held that GSL’s request was neither harassment nor unduly burdensome. Id. The 

Magistrate found XPO’s timeliness argument unavailing, as XPO had not asserted 

prejudice. Id. at 2519. She further concluded that GSL had proven Ms. Friedman 

could be deposed even under the higher but inapplicable standard assigned to 

CEOs. Id.

XPO’s present Objection and Motion for Leave timely followed.

II. STANDARD OF REVIEW

According to Fed. R. Civ. P. 72(a), when a party objects to a magistrate 

judge’s ruling on a non-dispositive motion, the district court must “modify or set 

aside any part of the order that is clearly erroneous or is contrary to law.” Likewise, 

28 U.S.C. § 636(b)(1)(A) provides that “[a] judge of the court may reconsider any 

pretrial matter where it has been shown that the magistrate judge’s order is clearly 
5

erroneous or contrary to law.” The “clearly erroneous” standard applies to factual 

findings and the “contrary to law” standard applies to legal conclusions. Gandee v. 

Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992). A factual finding is “clearly 

erroneous” when the reviewing court is left with the definite and firm conviction 

that a mistake has been made. Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 

135, 140 (6th Cir. 1985). A legal conclusion is “contrary to law” when the magistrate 

judge has “misinterpreted or misapplied applicable law.” Hood v. Midwest Sav. 

Bank, Case No. 2:97-cv-218, 2001 WL 327723, at *2 (S.D. Ohio Mar. 22, 2001)

(Holschuh, J.)(citations omitted).

III. ANALYSIS

XPO’s Objection mimics arguments it previously presented to the Magistrate, 

albeit with two additions. First, that GSL’s delay in seeking the depositions caused 

XPO prejudice in the form of negating potential, less invasive resolutions because 

the discovery deadline has passed. Second, that a protective order is warranted 

under Fed. R. Civ. P. 26(c). (ECF No. 184, PageID 2539, 2544-45.) 

GSL’s opposition re-states its prior position before the Magistrate and 

introduces additional evidence of Mr. Jacobs’ knowledge of Baltagi’s interactions 

with Star Funding in the form of a letter (“Letter”) addressed to Mr. Jacobs from 

Star Funding. (ECF No. 188-1.)

XPO replies by seeking leave to supplement its original Objection to address 

the Letter, which GSL opposes. (ECF Nos. 189, 190.)
6

As an initial matter, despite providing 240 pages of documents to the 

Magistrate Judge, the Court notes that the following were not presented to the 

Magistrate when she was deciding the discovery issue: (1) the February 2021 

Declarations of Ms. Friedman, Mr. Gene Komsky, XPO’s attorney Martha Brewer 

Motley, and Ian Oliver (collectively, “February Declarations”); (2) the deposition 

transcripts of Mr. Muzi, Mr. Jorgensen, Mr. Shook, Mr. Oliver, Mr. Komsky, and 

Mr. Allen; (3) the Letter; (4) XPO’s prejudice contentions, and (5) XPO’s arguments 

about Fed. R. Civ. P. 26. The Court cannot and will not consider overruling the 

Magistrate Judge’s Order based upon on materials and arguments that were 

available but were not provided to her. Thus, XPO’s Motion for Leave, which is 

premised upon the Letter, is DENIED as MOOT. (ECF No. 189.)

“The scope of discovery is, of course, within the broad discretion of the trial 

court.” Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Rule 26(b)(1) 

permits discovery of “any nonprivileged matter that is relevant to any party’s claim 

or defense and proportional to the needs of the case, considering . . . whether the 

burden or expense of the proposed discovery outweighs its likely benefit.” The 

Supreme Court directs that Rule 26 be “construed broadly to encompass any matter 

that bears on, or that reasonably could lead to other matter that could bear on, any 

issue that is or may be in the case.” Oppenheimer Fund v. Sanders, 437 U.S. 340, 

351 (1978).

Ms. Friedman is Mr. Jacobs’ Chief of Staff. XPO does not argue that she is a 

high-level executive at XPO Logistics. Mr. Jacobs is XPO Logistics’ CEO. Thus, he is 
7

a high-level executive at XPO Logistics. In this instance, the Magistrate correctly 

determined that GSL, as the party seeking Mr. Jacobs’ deposition, must show that 

he has unique knowledge of the matters at issue and that there are no less 

burdensome ways of obtaining the same information. (ECF No. 182, PageID 

2517)(citing Curtis v. Alcoa, Inc., No. 3:06-CV-448, 2008 U.S. Dist. LEXIS 145301, 

at *43 (E.D. Tenn. Aug. 27, 2008)(collecting cases)). See also Adkisson v. Jacobs 

Eng’g Grp., Inc., No. 3:13-CV-505-TAV-HBG, 2020 U.S. Dist. LEXIS 205270, at *13 

(E.D. Tenn. Nov. 3, 2020). Neither side objects to application of that standard. (ECF 

No. 184, PageID 2540; ECF No. 188, PageID 2865-68.)

A. The Information Pertains to Matters at Issue.

GSL argues the e-mails are relevant as they pertain to their negligence and 

respondeat superior fraud claims against XPO. XPO attacks the relevance of the emails on two grounds—content and timing.

First, XPO frames the “key issue[]” in this case as “whether GSL completed 

appropriate due diligence before handing millions of dollars to a stranger.” (ECF 

No. 184, PageID 2542.) From this, XPO argues that the e-mails are irrelevant 

because they concern different tires than those in this case. (ECF No. 184, PageIDs 

2528, 2542.) XPO additionally argues that the e-mails are irrelevant because they 

were sent after GSL disbursed funds to Landash. (ECF No. 184, PageID 2528.) 

XPO’s contentions ignore GSL’s negligence and respondeat superior fraud 

counts against XPO based upon XPO’s employment of Baltagi. See ECF No. 144. As 

GSL correctly notes, such claims involve questions of what XPO knew about 
8

Baltagi’s actions, when XPO became aware of his conduct, and whether XPO 

ratified Baltagi’s alleged fraud. (ECF No. 188, PageID 2866.) Because the e-mails 

concern missing and mishandled tires like the respondeat superior fraud and 

negligence counts do, the e-mails are a “matter that bears on, or that reasonably 

could lead to other matters that could bear on, any issue that is or may be in the 

case.” Oppenheimer, 437 U.S. at 351. Thus, the Court concurs with the Magistrate 

that GSL satisfied its burden of showing the e-mails pertain to matters at issue and 

are relevant.

B. Tailored Depositions Would not Impose an Undue Burden.

XPO insists that GSL’s requested depositions amount to harassment because 

Mr. Jacobs has no personal knowledge of the matters at issue. (ECF No. 184, 

PageID 2540.) While acknowledging the e-mails explicitly indicate that Mr. Jacobs 

asked Mr. Muzi to resolve the dispute and that Mr. Oliver wrote to Mr. Baltagi that 

“when Brad [Jacobs] starts question[ing] us we have to question you,” XPO 

nevertheless asserts that no one at XPO ever spoke with Mr. Jacobs about the emails. (ECF No. 184, PageID 2540.) XPO explains this by referring to Mr. Muzi’s 

January 7, 2021 Declaration wherein he avers that he never communicated with 

Mr. Jacobs about the e-mails and that he “believes” no one else at XPO did either. 

(ECF No. 181, PageID 2293, ¶¶ 4-5.) 

Of course, Mr. Muzi cannot speak to whether others communicated with Mr. 

Jacobs about the e-mails. And, Ms. Friedman’s e-mail response asking Mr. Muzi to 

get involved because the situation “is getting a little out of hand” establishes her 
9

knowledge of the situation. In this regard, it is important to note that Ms. 

Friedman’s e-mail address was not on the chain; instead, only Mr. Jacob’s e-mail 

address appeared. Thus, her response, combined with Mr. Muzi’s statement that 

Mr. Jacobs, not Ms. Friedman, asked Mr. Muzi to get involved, lead to the 

conclusion that both Mr. Jacobs and Ms. Friedman may have “unique personal 

knowledge of the matters at issue.” Curtis, 2008 WL 11342549, at *3. And, due to 

that knowledge, harassment is not an issue here.

XPO asserts allowing the depositions to proceed would place an undue 

burden on Mr. Jacobs and Ms. Friedman in the time away from their important 

work at “one of the nation’s largest transportation and logistics companies.” (ECF 

No. 184, PageID 2542.) Magistrate Jolson addressed this concern by placing a fourhour time limit on each deposition and instructing GSL’s counsel to tailor their 

questions. (ECF No. 182, PageID 2519)(citing E.E.O.C. v. Cintas Corp., No. 04-

40132, 2015 WL 1954476, at *3 (E.D. Mich. Apr. 29, 2015)(permitting four-hour 

deposition of Cintas’ CEO)). The Magistrate’s approach negates XPO’s undue 

burden concern. 

XPO argues that GSL has already obtained the information it seeks in a less

burdensome manner. (ECF No. 184, PageID 2542.) Namely, XPO submits that GSL 

has the information “from the six XPO witnesses who testified at length” about the 

Star Funding matter. (ECF No. 184, PageID 2542.) However, the Court need not 

credit [that] bald assertion that being deposed would present a 

substantial burden, especially when [Mr. Jacobs’] deposition could 

provide information critical to [GSL’s] claims. To allow a defendant to 

avoid his discovery obligations on such a thin basis frustrates the 
10

purpose of discovery, and runs counter to the Supreme Court’s explicit 

instruction that discovery privileges should be ‘construed broadly.’

Conti v. Am. Axle & Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009)(quoting 

Oppenheimer Fund, 437 U.S. at 351).

XPO next plays the public policy card, asserting that permitting the 

depositions to go forward would establish “a burdensome and dangerous 

precedent—that the CEO of a public company can be ordered to sit for a deposition

simply because he was incidentally copied on an unsolicited e-mail from a third 

party.” (ECF No. 184, PageID 2543.) Mr. Jacobs’ deposition will proceed not 

because he was copied on one e-mail, but because he was copied on multiple 

e-mails and because the e-mails indicate that he directed Mr. Muzi to get involved

in the situation. Under these facts, XPO’s public policy argument is unpersuasive. 

To summarize, GSL has satisfied its burden of establishing that Mr. Jacobs 

has unique personal knowledge of the matters at issue and that there are no less 

burdensome ways of obtaining the same information. GSL has also established that 

Ms. Friedman meets this higher standard even though GSL is not required to do so. 

The Order is neither clearly erroneous nor contrary to law, and XPO’s Objections 

are OVERRULED. (ECF No. 184)

IV. CONCLUSION

XPO’s Objections (ECF No. 184) to the Order (ECF No. 182) are 

OVERRULED. XPO’s request for a hearing (ECF No. 184) is DENIED. XPO’s 

Motion for Leave is DENIED. (ECF No. 189.) 
11

The Court ADOPTS the Order. (ECF No. 182.) Plaintiff’s request to depose 

Mr. Jacobs and Ms. Friedman is therefore GRANTED. Neither deposition shall 

exceed four (4) hours, and Plaintiff must tailor them to be as efficient as possible. 

The parties shall meet and confer and schedule these depositions to take place 

within forty-five days of this Opinion and Order. 

Counsel shall jointly contact Magistrate Jolson’s chambers within five days of 

this Opinion and Order to address the case schedule. However, the present 

dispositive motion deadline of July 19, 2021 may not be altered.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE