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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 RESPONSE TO 

DEFENDANT’S OBJECTIONS TO 

EXPERT WITNESS IDENTIFICATION

TRPN’s objections to the identification of expert witnesses is unwarranted, and nothing 

more than an effort to use inappropriate procedural tactics to avoid litigating the merits of this 

case. Notwithstanding the constraints placed upon the Court, and litigation generally, by the 

Coronavirus for the past 11 months, the current status of this case dictates that the setting of a new 

calendar order which includes the identification of expert witnesses is appropriate: 

i) Consistent with Local Rule 16.2 and this Court’s prior calendar order dated January 

22, 2020, indicating that a new calendar order will be issued following the 

resolution of a motion to compel, the Court has already determined that good cause 

exists for the issuance of said new scheduling order; 

ii) Discovery is still ongoing in this case with a pending dispute regarding the taking 

of the deposition of Defendant’s decision maker Blaine Pollock which, to date, 

Defendant has refused to produce; 

iii) No trial date, formal pre-trial date, dates for dispositive motions, nor discovery cutoff have been set (nor is it clear when the status of the Coronavirus will permit such 

dates); 

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iv) Despite Defendant’s misleading discovery response, Plaintiff has recently 

uncovered that, Defendant, TRPN Direct Pay, Inc. (“TRPN DP”) and Blaine 

Pollock have breached the NDA with plaintiff and conspired to misappropriate 

Plaintiff’s confidential information, necessitating that the Complaint in this matter 

be amended to add Pollock and TRPN Direct Pay, Inc. as Defendants; and

v) Defendant concedes that Plaintiff should be entitled to identify experts and provide 

expert testimony, but contrary to the civil rules and the truth seeking function of 

the litigation process, is seeking to dictate which experts Plaintiff may call (i.e. the 

expert must be employed by S&S) and the subjects to which they may testify.

S&S is prepared to identify experts for purposes of this litigation. As indicated above, 

however, after being informed in July 2020 that the Court was inclined to overrule Defendant’s 

objections to Plaintiff identifying experts, Defendant made further inappropriate attempts to limit 

expert disclosure by demanding that Plaintiff agree to limit the identity of such experts and the 

subject matters on which they would testify (to which Plaintiff did not agree, and disputes that 

they ever made any representation that they would). As a result, expert witnesses still have not 

been identified, and will not be able to be identified until this Court renders a decision on TRPN’s 

objections. 

TRPN’s objections should be overruled, and as anticipated in January, 2020, a new 

calendar order with new expert witness disclosure deadlines should issue. 

I. Timeline of events giving rise to the dispute over expert witness identification.

TRPN completely mischaracterizes the timeline of events which led to this dispute 

regarding expert witness disclosures, including in particular the events which led to the Court’s 

January 22, 2020 Order. 

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The January 22 Order stayed all calendar deadlines in this case to allow the parties to brief 

a motion to compel the testimony of Blaine Pollock (TRPN’s founder, former owner, and current 

managing agent). (See January 22, 2020 Order, Doc#59, PAGEID #317). The Order resulted from

TRPN’s notification to Plaintiff in the Fall of 2019 that they would not be producing Pollock for 

deposition because he was supposedly no longer associated with TRPN, and now resides overseas.

Since TRPN made that representation, S&S has uncovered evidence that Pollock remains heavily 

involved with TRPN and its employees, with particular respect to Direct Pay. (See Plaintiff’s 

Motion to Compel, supra, Doc. # 81, PAGEID # 428-445). 

S&S spent weeks corresponding with TRPN’s counsel regarding TRPN’s obligation to 

produce Pollock, and S&S’ need for such testimony before discovery could be completed. (See 

Exhibits 1-4 to Smith Aff.). S&S eventually served a Notice of Deposition on TRPN, and when 

Defendant notified Plaintiff that neither TRPN’s counsel nor Pollock would attend, Plaintiff sought 

court intervention. (Id.). This included informal conferences with the Court on December 20, 2019 

and January 22, 2020. 

At the January 22, 2020 conference, the parties and court discussed the discovery dispute 

and need for a new calendar order in this case. It is Plaintiff’s counsel recollection that the Court 

indicated to the parties that it would issue a new calendar order with all new dates following 

resolution of the motion to compel. Following the January 22, 2020 conference, the Court issued 

an Order indicating that the calendar dates in the litigation were stayed pending Plaintiff’s 

submission of a motion to compel relating to Pollock. (See Doc#59, PAGEID #317). 

In the months that followed, COVID-19 arose in the United States, delaying the filing of 

Plaintiff’s Motion to Compel. Indeed, while Plaintiff had originally intended to prepare and file its 

motion to compel shortly after the January 22, 2020 conference, it held off on doing so given that 

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the pandemic halted the ability of Plaintiff’s counsel to travel to Italy, or for Pollock to travel to 

the United States. 

On July 22, 2020, the parties attended a status conference with the Court, in which the 

Court directed the parties to submit a new proposed calendar order to the Court by Monday, July 

27, 2020. (See July 22, 2020 Minute Entry). This was consistent with counsel’s understanding that

the Court was asking the parties to set a new calendar order with new dates. In light of this 

understanding, Plaintiff’s counsel then proposed such dates to Defendant’s counsel via e-mail, 

including new expert disclosure deadlines:

Plaintiff’s Expert Disclosure: October 30, 2020

Defendant’s Expert Disclosure: November 30, 2020

Rebuttal Expert Disclosure: December 31, 2020

Discovery Cutoff: January 29, 2021

Dispositive Motion Deadline: February 26, 2021

(See Exhibit 5 to Smith Aff.). Plaintiff and Defendant had agreed to extend deadlines on at least 

three occasions in this case, and each time the parties had set new deadlines for expert witness 

disclosures, despite such deadlines having previously expired. (See Doc # 17, 21, 25, 35). 

Defendant concedes as much in its brief opposing expert witness disclosure. (See Def’s Opp. to 

Plaintiff’s “Request to Extend Expert Witness Deadlines,” pg. 4, Doc # 80, PAGEID # 410).

Defendant’s counsel responded, indicating for the first time that they were not agreeable 

to new dates for expert witness identification. (Id.). Plaintiff’s counsel responded back, making 

clear that the past expert deadlines had been vacated or stayed by the Court through agreement of 

the parties, and Plaintiff was simply proposing new dates as it had done in the past. (Id.). Moreover, 

Plaintiff’s counsel indicated that the Court would likely seek to set such deadlines rather than apply 

the 90-day default limitation under Fed. R. Civ. P. 26(b)(2)(D), given its understanding that the 

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prior calendar order had been effectively vacated. (Id.). Defendant stood by its refusal, and the 

parties then sought court intervention to resolve the dispute. (See Exhibit 6 to Smith Aff.).

The Court held a status conference with the parties on July 30, 2020, during which the 

parties discussed the dispute with the Court and made respective arguments regarding expert 

disclosures. The Court informed the parties that it was inclined to permit expert disclosures in the 

new calendar order, but gave Defendant’s counsel an opportunity to inform the Court whether 

Defendant would object to the same. An order from the court then followed, in which the Court 

directed that “[o]n or before August 6, 2020, the parties shall either submit a proposed calendar 

order that includes expert witness deadlines, or defendant shall notify the Court, in writing, that it 

wishes to brief the expert witness issue.” (See Doc # 72, PAGEID # 396). 

Defendant followed up with Plaintiff’s counsel with an inappropriate attempt to negotiate 

a limit on the subject matter and identity of Plaintiff’s expert witnesses. In particular, on August 

6, 2020, Defendant’s counsel e-mailed counsel for Plaintiff, making a vague statement that TRPN 

“is not going to object to the court’s decision on expert witnesses assuming S&S’s disclosure will 

be limited as described by counsel during our status conference.” (See Exhibit 7 to Smith Aff.). 

Plaintiff’s counsel responded, asking for clarification on the “limitations” that Defendant’s counsel 

was referencing. (Id.). Defendant’s counsel then asserted (wrongly) that Plaintiff’s counsel 

“indicated that S&S intended to identify an internal expert to testify with respect to the software 

program itself since it is highly technical in nature.” (Id.). Given that Plaintiff’s counsel had never 

agreed to such a limitation, counsel took time to consider whether such a limitation would be 

agreeable, especially given that it was not required under any civil or evidentiary rules. 

On December 15, 2020, TRPN sought a status conference with the Court to further discuss 

the expert witness issue. The Court then set a status conference for January 7, 2021 at 2:00 p.m. 

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(See December 16, 2020 Minute Entry). In light of Defendant’s request for the status conference, 

Plaintiff’s counsel informed Defendant’s counsel that it was not agreeable to the proposed 

limitations by Defendant regarding expert witnesses, and that it intended to identify outside thirdparty experts. (See Exhibit 8 to Smith Aff.). Plaintiff’s counsel also asked Defendant’s counsel 

for confirmation whether it was agreeable with the same, or intended to proceed with its objections. 

(Id.). Defendant’s counsel responded, claiming that it needed to know “on what subject S&S 

intends to identify experts[,]” and wrongly claimed that this was a “new position” of S&S as to 

experts. (Id.). 

Plaintiff’s counsel responded that S&S had never agreed to such a limitation on expert 

witnesses, and that it intended to identify experts for all permitted purposes including, but not 

limited to, (i) standard activities and expenses in the course of an implementation process by the 

third party administrator; (ii) information technology (IT) issues; and (iii) damages. (Id.). 

At the January 7, 2021 status conference, the parties further discussed the outstanding 

issues in this case, including (i) the need for Pollock’s deposition, and (ii) the expert witness 

deadline. Following that conference, the court set a briefing schedule for Plaintiff’s motion to 

compel TRPN to produce Pollock, and scheduled a follow-up status conference for January 12, 

2021 regarding expert witness disclosures. (See Doc#75, PAGEID # 399). At that January 12 

conference, Defendant’s counsel informed the Court that it intended to oppose expert witness 

identification, and the Court set a briefing schedule for the same. (See Doc#76, PAGEID # 400). 

II. The prior calendar deadlines were effectively vacated, and as such a new calendar 

order should include the identification of expert witnesses.

Defendant cannot avoid the fact that the deadlines in this case have been stayed since 

January 2020 pursuant to this Court’s Order, meaning that, in effect, the Court already determined 

over a year ago that good cause exists to modify the scheduling order. The “good cause” is 

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Defendant’s refusal to produce Pollock for deposition despite prior requests by Plaintiff in the Fall 

of 2019, which has necessitated a motion to compel to be briefed and resolved. 

Pursuant to the Court’s Order, an amended calendar order is to issue following the 

resolution of that motion. There is no reason why this new calendar order should not include new 

expert witness disclosure deadlines, as the parties have agreed to in the past and the Court has 

entered at least 3 times. Indeed, such experts could have been identified months ago had Defendant 

simply agreed to the dates proposed by Plaintiff. Instead Defendant has opposed, been told that 

their opposition would likely be overruled, and after being told the same sought an improper 

limitation from Plaintiff as to the identity of the expert and the subject matters on which they could 

testify. 

There is also no prejudice to Defendant in permitting the disclosure of experts in this new 

calendar order. There is no trial date set in this case, and discovery will remain ongoing following 

the resolution of the motion to compel. Beyond that, with potential additional parties to the extent 

S&S’ motion for leave to amend is granted (TRPN DP and Pollock), it is likely that the discovery 

timeline will need to be extended in any event, including for expert witnesses as to those claims. 

It makes logical sense to allow the parties to identify experts during this lull in the case, such that 

they can proceed with any necessary discovery on the same while the Court resolves the motion 

to compel and motion for leave to amend. Defendant also cannot argue that they were somehow 

surprised by the expert witness identification—every calendar order prior to this one has 

contemplated expert witnesses, and Plaintiff has never made an indication that they do not intend 

to utilize experts in this case. 

III. To the extent the court finds that the prior expert disclosure deadline still applies, 

the failure to disclose experts by that deadline was substantially justified and 

harmless.

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To the extent the Court determines that its January 22, 2020 Order does not contemplate a 

new calendar order with new expert disclosure deadlines, Plaintiff submits that any purported 

failure to identify experts by the prior September 30, 2019 deadline was substantially justified,

harmless, and due to excusable neglect. See Fed. R. Civ. P. 37(c)(1)(“If a party fails to provide 

information or identify a witness as required by Rule 26(a) or (e), a party is not allowed to use that 

information or witness...unless the failure was substantially justified or harmless.”); Kassim v. 

United Airlines, Inc., 320 F.R.D. 451, 453 (E.D. Mich 2017) citing Morgan v. Gandalf, Ltd., 165 

F. App’x 425, 428 (6th Cir. 2006)(stating plaintiff must show that failure to act was due to 

“excusable neglect under Rule 6(b)(1)(B)). As such, an “extension” of such dates, and/or inclusion 

of such dates in the new calendar order is warranted. 

As described above, a discovery dispute arose between the parties in the Fall of 2019 

regarding Pollock, and TRPN’s refusal to produce him. This was roughly the same time that 

experts were to be identified. As a result of the discovery dispute, Plaintiff was understandably 

focused on obtaining a fact witness central to this case (Pollock), and sought court intervention to 

do so. Indeed, Pollock was the central decisionmaker for TRPN, and the same individual who 

misrepresented that TRPN would make payment to S&S in order to induce it to perform further 

work. 

The refusal to produce Pollock, and Plaintiff’s seeking of Court intervention resulted in an 

Order from the Court indicating that the calendar dates in the matter were all stayed, pending the 

resolution of this discovery dispute. It was Plaintiff’s understanding that this Order meant that new 

deadlines would be issued, including for expert witnesses. Indeed, when the Court directed the 

parties to submit a new calendar order in July 2020, it made no indication that the prior calendar 

deadlines remained in place. Plaintiff then submitted such deadlines, including expert disclosure,

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to Defendant, believing that the parties were on the same page regarding new deadlines (as they 

had been in the past). 

It was only when Defendant objected to expert witness identification for the first time that 

Plaintiff became aware that there was an apparent misunderstanding. Since that time, Plaintiff has 

continued to make its position regarding expert witnesses known, and it is only because Defendant 

opposes this expert identification or otherwise sought improper limitations that the disclosure has 

been further delayed. 

The purported delay in identifying experts is also harmless. As set forth above, a new 

calendar order is to be issued following resolution of the motion to compel. There is no trial date, 

pre-trial date, dispositive motion deadline, or discovery cutoff currently set for this matter. The 

parties have a full opportunity to establish new discovery deadlines once the motion to compel is 

resolved, and there is no reason why this could not also include expert witnesses (as has been 

contemplated in every other calendar order). Defendant has also been well aware that experts 

would be identified in this case, especially given the repeated agreement on extensions of the 

expert witness identification deadline in the past. Their opposition to identifying experts now is 

simply an effort to take improper advantage of a purportedly missed deadline that arose in part

because of a discovery dispute. 

IV. The recent discovery of evidence giving rise to claims against Pollock, TRPN DP, 

and additional claims against TRPN warrants new discovery deadlines, including 

for expert witnesses. 

Finally, as this Court is aware Plaintiff is seeking to add claims against Pollock, TRPN, 

and TRPN DP. The circumstances surrounding these newly discovered parties and claims are more 

fully set forth in Plaintiff’s Motion to Compel and Motion for Leave to Amend, but in summary: 

TRPN, TRPN DP, and Pollock have engaged in a scheme to misappropriate S&S’ confidential and 

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proprietary information, including the enhancements and developments S&S made to the Direct 

Pay concept, for their own use and benefit. This scheme included the formation of TRPN DP in 

2018 in order to apparently act as deceptive conduit for the transfer of funds to Pollock from TRPN 

for his work as a Direct Pay “consultant.” The claims were recently discovered through testimony 

in California litigation, Qiu v. Three Rivers Provider Network, Inc., and contradict prior 

representations by Defendant in discovery that Pollock no longer has any relationship with TRPN. 

These additional claims, if granted, will inevitably result in the need for additional 

discovery against these parties, and as to the newly asserted misappropriation claims. They would 

also warrant new expert witness disclosure deadlines, such that Plaintiff can identify any experts 

in support of those claims. Plaintiff’s recent discovery of these claims due to Defendant’s 

misrepresentations in discovery not only warrant good cause for an amended complaint, but also 

for extension of the other applicable deadlines under Rule 16(b). See Permasteelisa CS Corp. v. 

Airolite Co., LLC, No. 2:06-cv-0569, 2007 U.S. Dist. LEXIS 41974, at *6 (S.D. Ohio June 8, 

2007)(“Certainly, if a party is delayed in discovering the basis for amending its pleadings due to 

circumstances beyond its control, it may use that delay as a basis for arguing that a Rule 16(b) 

order deadline should be extended.”). 

As such, separate and apart from the aforementioned reasons to include expert witness 

identification in the new calendar order, such disclosures are also warranted in light of the proposed 

additional parties and claims. 

V. Conclusion

For the foregoing reasons, Plaintiff S&S respectfully requests that this Court overrule 

Defendant’s objections to the identification of expert witnesses, and issue a calendar order 

including the same following the resolution of Plaintiff’s Motion to Compel.

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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 16th day of February, 2021.

/s/ Peter A. Saba

Peter A. Saba (0055535)

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