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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

Alyssa Portnoy, et al.,

 Plaintiffs,

v.

National Credit Systems, Inc., et al,

 Defendant.

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Case No: 1:17-cv-834

Judge: Michael R. Barrett

Brief of Interested Party in Opposition 

to Plaintiffs’ Motion for Deposition of 

Defense Counsel Katrina DeMarte

NOW COMES counsel on behalf of Interested Party Katrina DeMarte

(“DeMarte”), counsel for National Credit Systems, Inc. (“NCS”), in her individual 

capacity, and provides this Brief in Opposition to Plaintiffs’ Motion for an Order to 

Depose Katrina DeMarte (ECF Doc. #113), and states as follows:

I. Factual Background

A pro hac vice motion on behalf of Attorney Dulan, for the sole purpose of 

representing Attorney DeMarte in the instant matter, and for the duration of the 

instant conflict, is being filed and served contemporaneously with this Brief. 

On or about August 20, 2021, Plaintiffs filed the instant, extraordinary, motion 

seeking “to conduct discovery . . . who could be liable per the allegations of the 

amended complaint,” specifically by deposing Defendant NCS’s attorney. See ECF 

Doc. #113, PageID 1048. It appears that Plaintiffs’ motion to amend (ECF Doc. #81)

was denied (ECF Doc #108) and there is currently no pending proposed amended 

complaint. 
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Attorney DeMarte first entered her appearance on behalf of National Credit 

Systems (“NCS”) in 2019. See ECF Doc. #36; and ECF Doc. #38. This court entered 

an Order confirming her representation of Williamsburg of Cincinnati

(“Williamsburg”) in 2019. See ECF Doc. #52; ECF Doc. #53. On information and belief, 

Resource Real Estate Opportunities (“RREO”) was the owner of Williamsburg at the 

time Plaintiffs signed the lease, which still owns the underlying debt. Exhibit 1.

Attorney Portnoy is the father of Plaintiff Alyssa Portnoy and husband of 

Plaintiff Darlene Portnoy. He has not issued formal discovery to Williamsburg or 

RREO in any regard, with the exception of deposing former employees. This 

Honorable Court ordered Ms. DeMarte to provide Mr. Portnoy with the address to 

remit payment for the judgment entered at summary judgment in 2019, and affirmed 

on remand by the Sixth Circuit Court of Appeals in 2020. (ECF Doc. #66) (albeit at a 

reduced amount. ECF Doc. #70.) She did so. (See ECF Doc. #115-1.)

On information and belief, following the Court of Appeals remand, Mr. Portnoy 

has employed a campaign of harassment against Ms. DeMarte and her clients, which 

includes contacting the parties she represents. Despite clear notice of the parties’ 

represented status, Plaintiffs’ attorney contacted RREO, Williamsburg, and NCS. See 

Exhibit 1. In one instance, Mr. Portnoy left a voicemail with RREO telling them that 

that Ms. DeMarte could “not be trusted” and that they needed to call him because

“time is of the essence” to discuss options with him. Id. On, or about December 1, 

2020, Mr. Portnoy also called NCS – knowing that they were a represented party –

for the sole purpose of harassment. Id. In doing so, Attorney Portnoy committed a 
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clear violation of Rule 4.2 of the Model Rules of Professional Conduct (as adopted 

verbatim by the Ohio Professional Rules of Conduct, Rule 4.2). In addition, Attorney 

Portnoy resists following the rules governing civil procedure, as discussed in further 

detail below.

As such, it is no surprise that Plaintiffs, through Mr. Portnoy, did not engage 

in any less-intrusive means of obtaining the sought information through named 

parties or witnesses already known to Plaintiffs, nor have Plaintiffs cited any 

authority supporting Plaintiffs’ assertion that they are entitled to such information, 

that the sought information is not privileged, or that it would be relevant to a claim 

or defense in this matter. Rather, this attempt to depose opposing counsel is merely 

meant to harass and intimidate at best, and, at worst, deprive Defendant of their 

chosen counsel.

II. Plaintiffs’ Motion Does Not Comport with Rule 7 of the Federal Rules 

of Civil Procedure or Southern District of Ohio Local Rule 7.2.

Rule 7 of the Federal Rules of Civil Procedure sets forth the most basic rules

that guide attorneys to form well-pleaded motions. Rule 7(b) states, in part:

MOTIONS AND OTHER PAPERS. 

(1) In General. A request for a court order must be made by motion. The 

motion must:

(A) ...; 

(B) state with particularity the grounds for seeking the order; and 

(C) state the relief sought. 

Fed. R. Civ. P. 7(b) (emphasis added). Rule 10(c) provides, however, that 

“[s]tatements in a pleading may be adopted by reference in . . . another pleading or in 

any motion.” Fed. R. Civ. P. 10(c). Rule 7(b)(2) further provides that “[t]he rules 
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applicable to . . . matters of form of pleadings apply to all motions,” and Rule 10 is 

entitled “Form of Pleadings.” AM Intern., Inc. v. Int’l. Forging Equip., 743 F.Supp.

525, 528 (N.D. Ohio 1990), aff'd in part, rev'd in part and remanded sub nom, AM

Intern., Inc. v. Int’l. Forging Equip. Corp., 982 F.2d 989 (6th Cir.1993). It would 

therefore seem that Rule 7(b)(2) contemplates incorporation between motions. Yet in 

the instant motion, Plaintiffs seem to only contemplate the motion to amend their

complaint, which has already been decided and denied. ECF Doc. #108.

This Court’s local rule, Rule 7.2 Motions and Other Papers, also contemplates 

the contents of a party’s brief: “(a) Legal Memoranda (1) . . . All motions and 

applications tendered for filing shall be accompanied by a memorandum in support 

thereof that shall be a brief statement of the grounds, with citation of authorities relied 

upon.” S.D. Ohio Civ. R. 7.2 (emphasis added). In this instance, Plaintiffs have put 

forth a combined Motion and Brief that fills all of one page, lacks any citation to law, 

and attempts to create confusion regarding who Ms. DeMarte’s clients are, despite 

the fact that she substituted in for Williamsburg on August 6, 2019 (ECF Doc. #52 

and #53) and reiterated her representation in the attached, aforementioned Exhibit 

1, sent on January 25, 2021.

Plaintiffs’ motion is no mere technical violation of the rule. Plaintiffs fail to 

state with particularity what information they seek, as discussed more fully, infra.

Furthermore, beyond Rule 30, Plaintiffs’ memorandum fails to state any case law or 

rule supporting his motion. The explicit language of Rule 7(b) and Rule 7.2, require
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that Plaintiffs’ motion must state with particularity why the moving party considers 

the motion appropriate.

III. Plaintiffs’ Proposed Deposition of Defendant’s Attorney, Ms. DeMarte,

is Contrary to the Letter and Spirit of Rule 11.

Plaintiffs’ Motion to depose Defendant NCS’s attorney, Ms. Katrina DeMarte, is

clearly meant to harass, intimidate, cause unnecessary delay, and needlessly increase 

the cost of litigation, and is submitted for improper purposes. This is a clear violation 

of Rule 11(b) of the Federal Rules of Civil Procedure, which states, in relevant part:

REPRESENTATIONS TO THE COURT. By presenting to the court a . 

. . written motion. . . an attorney . . . certifies that to the best of the 

person’s knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances: 

(1) it is not being presented for any improper purpose, such as to harass, 

cause unnecessary delay, or needlessly increase the cost of litigation; 

(2) the claims, defenses, and other legal contentions are warranted by 

existing law or by a nonfrivolous argument for extending, modifying, or 

reversing existing law or for establishing new law; 

(3) the factual contentions have evidentiary support or, if specifically so 

identified, will likely have evidentiary support after a reasonable 

opportunity for further investigation or discovery; and 

(4) the denials of factual contentions are warranted on the evidence or, 

if specifically so identified, are reasonably based on belief or a lack of 

information.

Fed. R. Civ. P. 11(b).

Plaintiffs’ attorney also fails to cite any existing law to support his contention

that Defendant NCS’s attorney, Ms. DeMarte, may offer any non-privileged

information relevant to the facts in this case to support Plaintiffs’ preparation for 

litigation. 
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Parties may obtain discovery regarding any nonprivileged matter that 

is relevant to any party's claim or defense and proportional to the needs 

of the case, considering the importance of the issues at stake in the 

action, the amount in controversy, the parties’ relative access to relevant 

information, the parties’ resources, the importance of the discovery in 

resolving the issues, and whether the burden or expense of the proposed 

discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b).

Plaintiffs’ attorney also fails to provide supporting evidence of his theory that Ms. 

DeMarte’s deposition will provide any information not protected by privilege or 

confidentiality. Plaintiffs’ sweeping, non-specific motion lacks any evidentiary 

support in which attorneys may depose opposing attorneys. See Part IV, infra. It is 

unreasonable for Plaintiffs to move to depose Ms. DeMarte, and the deposition is 

unlikely to lead to any nonprivileged, relevant information. Ms. DeMarte’s opposition 

is warranted based on the lack of legal or evidentiary support that Plaintiffs’ attorney

offers. 

IV. When Applying the Sixth Circuit’s Three-Pronged Shelton Test, 

Plaintiffs Should Not Be Permitted to Depose Ms. DeMarte.

In Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621 (6th Cir. 2002), the 

Sixth Circuit adopted the three-part test from Shelton v. American Motors Corp., 805 

F.2d 1323, 1327 (8th Cir. 1986), to determine whether a party may take the deposition 

of opposing counsel. Under that test, discovery from an opposing counsel is limited 

to where the party seeking to take the deposition has shown that “(1) no other means 

exist to obtain the information . . .; (2) the information sought is relevant and 

nonprivileged; and (3) the information is crucial to the preparation of the case.” 

Nationwide, 278 F.3d at 628 (quoting Shelton, 805 F.2d at 1327 (citation omitted)).
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Although nothing in the Federal Rules of Civil Procedure prohibits deposing 

an opposing party's attorney, efforts to do so typically are “view[ed] skeptically” and 

“permitted only when the information sought is not available from another 

source.” Carr v. Double T Diner, 272 F.R.D. 431, 435 (D. Md. 2010). “Because

deposition of a party's attorney is usually both burdensome and disruptive, the mere

request to depose a party's attorney constitutes good cause for obtaining a . .

. protective order unless the party seeking the deposition can show both the propriety

and need for the deposition.” N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 

F.R.D. 83, 85 (M.D.N.C. 1987). Such requirements apply both where a party seeks 

to depose the opposing party's litigation counsel, see N.F.A., 117 F.R.D. at 84, and 

where the putative deponent is the non-moving party's general corporate 

counsel, see Buyer's Direct Inc. v. Belk, Inc., No. 5:10–CV–65–H, 2012 WL 3278928, 

at *2–3 (E.D.N.C. Aug. 10, 2012). While this cited case law is persuasive and not 

controlling in this jurisdiction, this Court should strongly consider it because the 

principal expressed in these cases are generally held in every jurisdiction.

Applying the first prong of the Shelton test, Plaintiffs have failed to show that 

no other means are available to obtain the information they seek. Several other 

means exist to attempt to gather the information Plaintiffs seek, but Plaintiffs failed 

to exhaust these options before seeking an oral deposition of Defendant’s attorney

under Rule 30 of the Federal Rules of Civil Procedure. For example, Plaintiffs could 

have first attempted to obtain the information through Interrogatories under Rule

33, Requests for Admission under Rule 36, or deposed, without leave, any number of 
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parties or witnesses. Instead, Plaintiffs chose to move for an oral deposition of a 

current attorney of record in this case, the most burdensome and disruptive option 

available. Since Plaintiffs have failed to show that no other means are available to 

obtain the information, the first prong of the Shelton test clearly weighs against 

Plaintiffs’ outrageous request. Thus, this Court should not allow Plaintiffs to depose 

Ms. DeMarte.

With regard to the second prong of the Shelton test, the information Plaintiffs

seek in this case is not only irrelevant, it is privileged information. First, Ms. DeMarte 

was not involved in this dispute prior to it becoming a lawsuit. Plaintiffs simply seek 

to question opposing counsel, Ms. DeMarte, about events and conversations with her 

clients related to the defense of this case, not the underlying relevant facts. This 

information is irrelevant to the merits of the case. Further, Ms. DeMarte’s 

communications with her clients are privileged information immune from discovery. 

Plaintiffs have not provided any support for the notion that communications between 

Ms. DeMarte and her clients are even remotely relevant to this case. Since the 

information Plaintiffs seek is both irrelevant and privileged, the second prong of the 

Shelton tests weighs against Plaintiffs. Thus, this Court should not allow Plaintiffs 

to depose Ms. DeMarte.

Analyzing the third prong of the Shelton test, Plaintiffs have failed to show 

that the information sought from Ms. DeMarte is crucial to the presentation of the 

case. Plaintiffs’ Brief in Support of its Motion to Depose, which consists of a mere

single page, provides this Court with no guidance as to how deposing Ms. DeMarte is 
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crucial to the presentation of their case. In Nationwide, the Sixth Circuit found that 

the defendant failed the third prong of the Shelton test because it failed to explain 

“why the information [was] crucial to the preparation of its case.” 278 F.3d at 629.

Plaintiffs are in exactly the same situation that the defendants were in National. As 

such, the third prong of the Shelton test weighs against Plaintiffs, and this Court 

should not allow Plaintiffs to depose Ms. DeMarte.

This Court should deny Plaintiff’s Motion to Depose Ms. DeMarte. First, 

Plaintiffs have failed to show that no other means exist to obtain the information they 

seek. Second, the information Plaintiffs seek is irrelevant to this case and privileged, 

and Plaintiffs have not provided anything in their motion to suggest the contrary.

Lastly, Plaintiffs have not provided anything in their motion to indicate to the court 

that the information is crucial to the preparation of the case. Thus, all three factors 

of the Shelton test weigh against Plaintiffs. Because of this, Plaintiffs should not be 

permitted to depose Ms. DeMarte in this case.

V. Conclusion

Plaintiffs’ Motion to Depose Ms. DeMarte is wholly unsubstantiated in fact or 

law. Given the complete failure to provide any credible reason for such an 

extraordinary request, Plaintiffs and Plaintiffs’ counsel should be sanctioned and 

ordered to pay Ms. DeMarte’s legal expenses in having to defend and respond to 

Plaintiffs’ Motion.
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Plaintiffs’ Motion was clearly filed for the purpose of delay or other improper 

purpose, and a reservation of rights to file a motion for damages pursuant to 28 U.S.C. 

§ 1927 is hereby made. 

RELIEF REQUESTED

Wherefore, Ms. DeMarte requests this Court DENY Plaintiffs’ motion and 

award actual costs and fees expended in opposing this frivolous motion.

Respectfully Submitted, 

/s/ Jessica A. Barwell 

Wesp Barwell, LLC

Attorneys at Law

Jud R. Mauger (0063375)

Jessica A. Barwell (0088716)

Gregory P. Barwell (0070545)

100 E Broad Street, Suite 2350

Columbus, OH 43215

Ph: (614) 456-0488

Fax: (614) 456-0488

Email: jbarwell@wesplaw.com

Email: gbarwell@wesplaw.com

Email: jmauger@wesplaw.com

Attorneys for Interested Party

Steven W. Dulan (P54914)

The Law Offices of Steven W. Dulan, PLC

5311 Park Lake Road

East Lansing, MI 48823

Ph: (517) 332-3149

Fax: (517) 333-1691

Email: swdulan@stevenwdulan.com

 Attorney for Interested Party

 PRO HAC VICE to be filed
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CERTIFICATE OF SERVICE

I hereby certify that on September 10, 2021, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system, which will serve notice to all 

attorneys of record. 

/s/ Jessica A. Barwell

(0088716)