IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

STEVEN B. BARGER, an individual, 

Plaintiff, 

v. 

FIRST DATA CORPORATION, et al., 

Defendants. 

Civil Case No. EDNY: 1:17-cv-04869-FB-LB 

Civil Case No. 1:18-mc-00010 

DEFENDANTS’ MOTION TO COMPEL THIRD PARTY WITNESS 

JULIE KELLY TO COMPLY WITH DEPOSITION SUBPOENA AND 

MEMORANDUM OF LAW IN SUPPORT THEREOF 

Defendants First Data Corporation, Frank Bisignano, Dan Charron, Anthony Marino, 

Karen Whalen, and Rhonda Johnson move this Court for an order pursuant to Rule 45 of the 

Federal Rules of Civil Procedure compelling Julie Kelly, a third party, to comply with a 

deposition subpoena properly served in connection with an action pending in the United States 

District Court for the Eastern District of New York. The grounds in support of this Motion are as 

follows: 

A. PROCEDURAL HISTORY 

1. On May 23, 2018, Kelly, a resident of the State of Ohio, was personally served 

with a subpoena compelling her to attend a deposition related to an employment discrimination 

case styled as Steven B. Barger v. First Data Corporation, et al., Case No. 1:17-cv-4869, 

pending in the United States District Court for the Eastern District of New York. See Exhibit A.1

The subpoena directed Kelly to appear for a deposition on June 25, 2018 at 10:00 AM, in 

Cincinnati, Ohio. Id. 

1

 Exhibits are attached to the Declaration of Gillian A. Cooper, Esq. dated July 23, 2018. 

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2. Accompanying the subpoena was a letter advising Kelly that if the June 25, 2018 

date was not convenient for her, the undersigned counsel would work with her to schedule a 

mutually convenient date. Id.

3. On May 24, 2018, Kelly sent Defendants’ counsel a letter acknowledging receipt 

of the subpoena but stated that she had commitments on the scheduled date and that “[n]o 

matter what, [she] [is] not available at all on June 25.” See Exhibit B (emphasis added).2

4. By letter dated May 25, 2018, Defendants’ counsel responded to Kelly, 

acknowledging her unavailability for a deposition on June 25, 2018, offering 13 other dates in 

June and July 2018, for her deposition and assured Kelly that the deposition has no relation to a 

discrimination charge she had recently filed against First Data with the OCRC. Kelly was 

advised that her deposition related to information she might possess as a witness in this litigation 

since she had been supervised by the Plaintiff.3See Exhibit D. 

5. In response to representations in Kelly’s May 24, 2018 letter, and under Fed. R. 

Civ. P. 45(d)(1), Defendants offered to pay for any childcare costs Kelly might incur because of 

the deposition. Id. 

2

 In this same letter, Kelly expressed some confusion regarding service of the subpoena and 

whether the deposition related to a complaint of discrimination that Kelly had recently filed with 

the Ohio Civil Rights Commission (OCRC) against First Data, her former employer. It so 

happens that Barger’s counsel, Shawn Shearer, is also representing Kelly in her discrimination 

charge. Kelly asserts that Shearer does not represent her in connection with her deposition in the 

Barger case. See Exhibit E. Shearer refused to accept service of the subpoena for Kelly claiming 

that he is not her counsel in this case and directed Defendants to serve her with a subpoena. See 

Exhibit C. 

3

 In its Rule 26(a) Initial Disclosures, Kelly was identified as an employee who had worked with 

the plaintiff Barger. Kelly was still a First Data employee when Defendants served their Initial 

Disclosures on November 26, 2017. She resigned effective November 30, 2017. 

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B. EFFORTS TO RESOLVE THIS DISCOVERY DISPUTE

6. In Kelly’s letter dated May 29, 2018, she discussed Defendants’ use of Federal 

Express and stated that she is not represented by Shearer. She did not address deposition 

scheduling. See Exhibit E. 

7. On June 21, 2018, Gillian A. Cooper, Esq., one of Defendants’ lawyers, called 

Kelly and left a voicemail in which she identified herself as counsel for Defendants. See

Certificate of Good Faith Compliance of Gillian A. Cooper, Esq., included at the end of this 

Motion. In her message, Cooper confirmed that Kelly was unavailable to be deposed on June 25, 

2018. Id. She also requested that Kelly return her call to discuss scheduling her deposition at a 

mutually agreeable date and time. Id. Kelly never returned Cooper’s telephone call. Id.

8. Unbeknownst to Defendants, Kelly appeared for her deposition on June 25, 2018, 

with her children.4 By letter of that same date, Kelly wrote that she “never received a confirmed 

cancellation” of her deposition so she “felt obligated to show up.” See Exhibit F.5 She again 

confirmed that she does “not have any legal representation for this case.” Id.

9. On July 3, 2018, the undersigned counsel again wrote to Kelly, this time by UPS 

overnight mail, advising that she is representing Defendants and that she had left a message 

regarding the need to schedule her deposition but had not heard from her. See Exhibit G. 

10. On July 6, 2018, counsel received a letter from Kelly dated June 27, 2018, again 

claiming that counsel did not “confirm that the June 25th [date] was cancelled” and that she 

4

 Just prior to defending the deposition of a witness in this case in Atlanta, Georgia, Defendants 

learned from Shearer that Kelly had apparently shown up for her deposition in Cincinnati, 

despite multiple representations that he does not represent her for purposes of a deposition. 

5

 It is unclear what Kelly means by a “confirmed” cancellation, as she made it quite clear that she 

was unavailable on June 25th. See Exhibit B. By letter dated May 25, 2018, counsel confirmed 

that Kelly was unavailable. See Exhibit D. Further, Cooper called Kelly on June 21, 2018, 

leaving a voicemail confirming that Kelly was unavailable on June 25th. 

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appeared with her three children.6See Exhibit H. Ms. Kelly then requested that counsel use email 

to communicate going forward. Id.

11. On July 10, 2018, counsel emailed Kelly requesting to set up a telephone call. See

Exhibit I, p. 3. In response, Kelly replied by asking, “Ms. Cooper, Are you my lawyer?” Id. Gary 

B. Eidelman, lead counsel for the Defendants, replied that no, Defendants’ lawyers are not 

Kelly’s lawyers and that we were contacting her via email as directed. Id. at p. 2. Again Kelly 

responded, “Mr. Eidelman, Are you my lawyer?” to which she received the response, “No I am 

not and never have been. Wherever did you get that idea?” Id. Kelly responded, “You gave me 

that idea as you are the lawyer for First Data’s defendants.” Id. at pp. 1-2. 

12. Defendants’ counsel then sent Kelly yet another email trying to schedule her 

deposition which stated as follows: 

Ms. Kelly: 

We are not your lawyers. Please provide us with dates that you are 

available for a deposition. If we cannot agree to a date, we will be 

forced to move before the United States District Court for the 

Southern District of Ohio to compel your deposition. 

Id.

13. Kelly replied: 

Ms. Cooper & Mr. Eidelman, 

Quite honestly, I have no idea who either of you are, other than 

lawyers for First Data defendants in a federal law suit. I don’t 

understand why I’m being asked to provide other dates for a 

deposition when I showed up to the original (not cancelled) one. 

Id.

6

 Defendants indicated they would pay for childcare costs, not provide a babysitter at her 

deposition. See Exhibit D. This offer stands. 

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14. Having unsuccessfully attempted to work with Kelly to schedule her deposition, 

Defendants are now forced to seek assistance in scheduling her deposition before the close of 

discovery on August 31, 2018. 

C. ARGUMENT 

The 2013 amendments to the Federal Rules provide that a subpoena must issue from the 

court where the action is pending and, among other things, may only compel a third party to 

attend a deposition “within 100 miles of where the person resides, is employed, or regularly 

transacts business in person[.]” Fed. R. Civ. P. 45(a)(2), (c)(1). The deposition subpoena to Kelly 

complies with both of these requirements: (1) it was issued by the United States District Court 

for the Eastern District of New York where this case is pending; and (2) sets the location for her 

deposition in Cincinnati, less than 100 miles from where Kelly lives. See Exhibit A. In 

accordance with Rules 45(d) and (e), this Motion is properly filed in the Southern District of 

Ohio because that is the district where compliance is required. 

This action is pending in Brooklyn, New York, and Kelly lives more than 100 miles from 

that courthouse. Kelly cannot be compelled by subpoena to testify at trial. See Fed. R. Civ. P. 

45(c)(1). She can, however, be compelled to testify at a deposition. Id. In support of their 

Motion, Defendants have complied with their requirement to avoid undue burden or expense to 

Kelly. She advised of her unavailability for deposition on June 25, 2018, and Defendants 

immediately offered Kelly 13 other dates. See Exhibit D. She advised of her childcare situation 

and that she cannot afford a babysitter to which Defendants responded that they would pay for 

her childcare expenses while she was being deposed. See id. Before filing this Motion, 

Defendants made repeated efforts to schedule Kelly’s deposition by letter, voicemail, and email, 

all resulting in Kelly hurling unfounded accusations of improper conduct by a process server and 

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some random idea that Defendants’ lawyers are somehow her lawyers causing her to challenge 

the taking of her deposition. All of these actions and statements by Kelly are part of an 

unjustified attempt to avoid appearing for deposition for which she was properly served. 

D. CONCLUSION 

For the foregoing reasons, First Data respectfully requests that this Court grant the 

Defendants’ Motion to Compel and enter an Order directing Julie Kelly to appear for deposition 

in this jurisdiction at a date and time to be agreed upon by Kelly and Defendants’ counsel prior 

to the August 31, 2018 close of discovery, and grant such other and further relief as the Court 

deems just and proper. 

Respectfully submitted, 

/s/ Matthew R. Byrne__________

Matthew R. Byrne (0082228) 

JACKSON LEWIS P.C. 

PNC Center, 26th Floor 

201 E. Fifth Street 

Cincinnati, OH 45202 

Telephone: (513) 898-0050 

Facsimile: (513) 898-0051 

Email: matthew.byrne@jacksonlewis.com

Local Counsel for Defendants 

Of Counsel: 

SAUL EWING ARNSTEIN & LEHR LLP 

A Delaware LLP 

Gary B. Eidelman, Esq. 

500 E Pratt Street 

Baltimore, Maryland 21202 

T: (410) 332-8975 

Gary.Eidelman@saul.com 

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Gillian A. Cooper, Esq. 

650 College Road East, Suite 4000 

Princeton, New Jersey 08540 

T: (609) 452-5021 

Gillian.Cooper@saul.com 

Lindsey C. Kennedy, Esq. 

One PPG Place, Suite 3010 

Pittsburgh, Pennsylvania 15222 

T: (412) 209-2555 

Lindsey.Kennedy@saul.com 

Attorneys for Defendants

Dated: July 23, 2018 

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CERTIFICATE OF GOOD FAITH CONFERENCE 

In accordance with Local Rule 37.1, the undersigned hereby certifies that on June 21, 

2018, I contacted Kelly by telephone in a final and good faith effort to resolve this discovery 

dispute. I received Kelly’s voicemail. The voicemail greeting indicated that the voicemail 

belonged to Kelly. I left a voicemail message identifying myself as counsel for Defendants, 

confirming that Kelly was unavailable for her deposition on June 25, 2018, and requesting Kelly 

return my call to discuss scheduling her deposition at a mutually agreeable date and time. Kelly 

has not returned my message and has failed to contact me to discuss a date on which she will 

appear for a deposition in this matter. 

/s/ Gillian A. Cooper 

Gillian A. Cooper 

Dated: July 23, 2018 

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on the following 

counsel via hand delivery, UPS Overnight Delivery, and electronic mail: 

Julie Kelly 

823 Dorgene Lane 

Cincinnati, Ohio 45244 

I hereby certify that a true and correct copy of the foregoing was served on the following 

counsel via electronic mail: 

David A. Zeitlin, Esq. 

Zeitlin & Zeitlin, P.C. 

50 Court Street, Suite 506 

Brooklyn, New York 11201 

T: (718) 522-5644 

david@zeitlinlawfirm.com 

Attorneys for Plaintiff 

Shawn E. Shearer, Esq. 

The Law Office of Shawn Shearer, P.C. 

3839 McKinney Avenue, Suite 155-254 

Dallas, Texas 75204 

T: (214) 434-1594 

shawn@shearerlaw.pro 

Attorneys for Plaintiff 

/s/ Matthew R. Byrne 

Matthew R. Byrne 

Dated: July 23, 2018

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