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. SDOH: 1:18-mc-00010-SJDSKB 

Judge Susan Dlott 

Magistrate Judge Stephanie Bowman 

DEFENDANTS’ OPPOSITION TO KELLY’S RULE 72(a) OBJECTION 

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

Karen Whalen, and Rhonda Johnson respectfully submit this Opposition to Julie Kelly’s Rule 

72(a) Objection. In support of their Opposition, Defendants state as follows: 

A. INTRODUCTION 

Third party witness Julie Kelly (“Kelly”) raises a number of ancillary issues and makes 

several misstatements throughout her Rule 72(a) Objection (ECF No. 24) requesting that the 

Court overrule Magistrate Judge Stephanie K. Bowman’s order compelling her to attend a 

deposition. However, the undisputed facts demonstrate that Judge Bowman’s order was proper 

under the law and was not clearly erroneous or contrary to law. Judge Bowman’s Order should 

not be altered or overruled. Although there are quite a number of docket entries in this 

Miscellaneous matter, the facts supporting Judge Bowman’s decision can really be distilled as 

follows: 

• On November 26, 2016, Defendants listed Kelly (then employed by Defendant First Data 

as a manager) on their Rule 26(a) initial disclosures in the matter of Barger v. First Data 

Corporation, et al, Case No. 1:17-cv-4869, pending in the United States District Court 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 1 of 10 PAGEID #: 683
-2- 

for the Eastern District of New York. The initial disclosures indicated that Kelly may 

have “knowledge of Plaintiff’s performance as Manager of the Training Department and 

may have knowledge regarding the allegations set forth in the Complaint.” See 

Declaration of Gillian A. Cooper, Esq. dated October 5, 2018 (“Cooper Decl.”), Exhibit 

A, Defendants’ Initial Disclosures Pursuant to Rule 26(a). It is standard practice to state 

in initial disclosures that an employer’s managers may be contacted through counsel. 

• Kelly later resigned from First Data. Since she lives more than 100 miles from the 

Courthouse in Brooklyn, New York where the Barger case is pending, Defendants served 

a subpoena for her deposition pursuant to Rule 45 of the Federal Rules of Civil 

Procedure. See Cooper Decl., Exhibit B. 

• Kelly told Defendants by various means that she was unavailable on the scheduled date, 

would not comply with the subpoena, refused to provide Defendants dates on which she 

would voluntarily appear for a deposition, and failed to appear for her rescheduled 

deposition on August 31, 2018, even after participating in a status conference before 

Judge Bowman where she agreed to appear at the August 31 deposition. 

• After Kelly failed to appear, Defendants filed supplemental briefing on their Motion to 

Compel. Following a telephone hearing on September 18, 2018, during which Kelly was 

present and argued pro se, the Court granted Defendants’ Motion to Compel Deposition, 

compelling Kelly to attend a deposition at the Courthouse on October 15, 2018. 

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 in the Barger case, which is an 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 2 of 10 PAGEID #: 684
-3- 

employment discrimination case. See Cooper Decl., Exhibit B The subpoena directed Kelly to 

appear for a deposition on June 25, 2018, at 10:00 AM, in Cincinnati, Ohio. Id. 

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 replied to Defendants in which she stated that “I have 

commitments on June 25th that I am unable to change” and that “No matter what, I am not 

available at all on June 25.” See Cooper Decl., Exhibit C, Letter dated May 24, 2018 from Kelly. 

4. On May 25, 2018, Defendants replied and acknowledged that Kelly was not 

available on June 25. Defendants offered 13 additional dates in June and July, and asked Kelly to 

confirm if any of these dates worked with her schedule. Defendants additionally offered to pay 

the costs of her childcare. See Cooper Decl., Exhibit D, Letter dated May 25, 2018, from Gary 

Eidelman. 

5. Kelly never responded to Defendants regarding the additional dates offered. 

6. 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 Cooper 

Decl., Exhibit E, ECF 1-1, Certificate of Good Faith Compliance of Gillian A. Cooper, Esq. 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.

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 3 of 10 PAGEID #: 685
-4- 

7. Unbeknownst to Defendants, and despite her numerous statements to the contrary, 

Kelly appeared for her deposition on June 25, 2018, with her children.1 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.2 She again confirmed that she does “not have any 

legal representation for this case.” Id.

8. On July 3, 2018, Ms. Cooper again wrote to Kelly, 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 Cooper Decl., Exhibit G. 

9. 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 

appeared with her three children.3See Cooper Decl., Exhibit H. Ms. Kelly then requested that 

counsel use email to communicate going forward. Id.

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

Cooper Decl., 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 she was being contacted 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 

1

 Just prior to defending the deposition of a witness in the Barger 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. 

2

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

unavailable on June 25th. See Cooper Decl., Exhibit C. By letter dated May 25, 2018, counsel confirmed that Kelly 

was unavailable. See Cooper Decl., Exhibit D. Further, Cooper called Kelly on June 21, 2018, leaving a voicemail 

confirming that Kelly was unavailable on June 25th. See Cooper Decl., Exhibit E. 

3

 Defendants indicated they would pay for childcare costs, not provide a babysitter at her deposition. See Cooper 

Decl., Exhibit D. This offer stands. 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 4 of 10 PAGEID #: 686
-5- 

responded, “You gave me that idea as you are the lawyer for First Data’s defendants.” Id. at pp. 

1-2. 

11. 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.

12. 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.

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

Defendants moved to compel Kelly’s deposition in the above-captioned matter. See ECF No. 1. 

14. The Court scheduled a telephone conference for August 14, 2018. See ECF No. 6. 

At that conference, Kelly agreed that she would appear for a deposition on August 31, 2018, at 

12:00 PM at the law firm of Jackson Lewis, 201 E. Fifth Street, Cincinnati, Ohio. See Docket 

Entry dated August 14, 2018. The parties further agreed that the deposition would conclude by 

4:00 PM. Id. The parties further agreed that First Data would reimburse Kelly for child-care 

costs associated with the deposition. Id. On the call, the Court discussed with Defendants issuing 

a new subpoena to Kelly, which Defendants did issue. Defendants advised Kelly that the new 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 5 of 10 PAGEID #: 687
-6- 

subpoena would include a request for the production of documents. Kelly agreed to accept 

service of the subpoena via regular mail. Id.

15. On August 14, 2018, Defendants served a revised subpoena on Kelly in 

accordance with what had been agreed to during the conference with the Court.4

16. Kelly failed to appear for the August 31, 2018, deposition at 12 noon, and instead 

filed a Motion for Protective Order earlier that morning at 11:05 AM. See ECF No. 10. 

17. On September 19, Judge Bowman granted Defendants’ Motion to Compel Kelly’s 

deposition and ordered her deposition to occur on October 15, 2018, at 12:00 PM at the United 

States Potter Stewart Courthouse in Cincinnati, Ohio. See ECF No. 21 (the “Order”). The Court 

further ordered Kelly to bring any and all documents in her possession as requested. The Court 

denied Kelly’s Motion for Protective Order, and further denied several other motions filed by 

Kelly in this action (see ECF No. 4, ECF No. 8, ECF No. 10, ECF No. 18, and ECF No. 19). Id.

18. On October 2, 2018, 13 days after the entry of Judge Bowman’s Order, Kelly 

filed the instant Rule 72(a) Objection, in which she argues that Judge Bowman’s Order (see ECF 

No. 21) was clearly erroneous and contrary to law.5

4

 Kelly appears to make the confusing argument that if there was a need to issue a revised subpoena, then it proves 

that the first subpoena was somehow invalid. See ECF No. 24, Part V. This argument is meritless. The revised 

subpoena was issued as a result of the August 14, 2018 telephone conference with the Court where the parties 

agreed to a new date for Kelly’s deposition. The revised subpoena reflected that new date, given that the original 

subpoena date was for June 25, 2018 (the date on which Kelly stated to Defendants she would not comply).

5

 Although Kelly has filed numerous motions in this action, she has not filed a Motion for Protective Order with 

respect to the scheduled deposition date. Undoubtedly, she believes that the filing of the Rule 72(a) Objection alone 

serves as justification to not appear on October 15, 2018. The filing of such an Objection does not permit her to skip 

her deposition. Nonetheless, since Defendants have already spent thousands of dollars trying to schedule Kelly’s 

deposition, they do not want to appear on October 15, 2018, only to have Kelly no-show. Defendants request that the 

Court promptly deny the Objection so that Kelly must appear for her deposition at the previously ordered date and 

time. 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 6 of 10 PAGEID #: 688
-7- 

B. LEGAL STANDARD 

19. Parties requesting relief under Rule 72 face a high burden. Rule 72 permits a party 

to object to the order of a magistrate judge. For orders on non-dispositive motions, such as the 

discovery matter at issue here, the district court “must modify or set aside any part of a nondispositive order that is clearly erroneous or is contrary to law.” Bays v. Warden, 2014 U.S. Dist. 

LEXIS 627, at *3-4 (S.D. Ohio Jan. 3, 2014); Fed. R. Civ. P. 72(a). 

20. The “‘clearly erroneous’ standard applies to factual findings made by the 

magistrate judge.” Id. at *4. “A magistrate judge’s factual findings are considered clearly 

erroneous if, on the entire evidence, the court is left with the definite and firm conviction that a 

mistake has bene committed.” Id. at *4. “The test is whether there is evidence in the record to 

support the magistrate judge’s finding and whether the magistrate judge’s construction of that 

evidence is reasonable.” Id. at *4. 

21. The “contrary to law” standard applies to the magistrate judge’s legal conclusions. 

Id. at *4. “A legal conclusion is contrary to law if the court determines that the magistrate 

judge’s legal conclusion ‘contradict or ignore applicable precepts of law. . . .’” Id. at *4 (ellipsis 

in original). 

22. This Court has explained that, in the Rule 72(a) context, “[b]oth of these 

standards provide considerable deference to the determinations made by the magistrate judge.” 

Id. at *4. 

C. ARGUMENT 

23. Although never clearly stated, it appears that Kelly’s motion argues that Judge 

Bowman’s Order was contrary to law because the Court lacked jurisdiction to compel her 

deposition. 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 7 of 10 PAGEID #: 689
-8- 

24. The Court’s Order is not contrary to law and, to the contrary, was in accordance 

with the Federal Rules of Civil Procedure. 

25. Under the Federal Rules, 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). 

26. Here, the underlying subpoena which the Court Order compelled for deposition 

was: (1) issued by the United States District Court for the Eastern District of New York (where 

the Barger action is pending); and (2) set the location for Kelly’s deposition in Cincinnati, Ohio 

(within 100 miles of where she resides). See Cooper Decl., Exhibit B. 

27. In accordance with Rule 45(d) and (e), the underlying Motion to Compel that the 

Order granted was filed in the Southern District of Ohio, because that is the district where 

compliance is required. 

28. Kelly’s statement that she would not attend her deposition on June 25, 2018, her 

refusal to confer with undersigned counsel on deposition dates, and her failure to appear for her 

rescheduled deposition on August 31, 2018, have all necessitated Judge Bowman’s Order 

compelling her to appear for deposition at the Courthouse on October 15, 2018. The Order is not 

contrary to law or clearly erroneous because it enforces the Federal Rules and was in accordance 

with the evidence as presented in this matter. 

29. Fact discovery in the underlying Barger case closed on September 28, 2018. 

Upon motion of Defendants, Judge Bloom, the Magistrate Judge presiding over discovery in that 

case, granted a limited extension of discovery to allow Defendants to complete the deposition of 

Kelly (as well as for two additional third party witnesses). See Cooper Decl., Exhibit J, Paperless 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 8 of 10 PAGEID #: 690
-9- 

Order dated September 18, 2018, Court Docket Printout. The parties must report to Judge Bloom 

by October 12, 2018, regarding the status of the outstanding non-party depositions, imposing an 

urgency for a decision on Kelly’s Rule 72(a) Motion. 

D. CONCLUSION 

30. For the foregoing reasons, Defendants respectfully request that this Court deny 

Kelly’s Rule 72(a) Objection on the grounds that she has failed to set forth any factual or legal 

basis to overturn Judge Bowman’s Order as clearly erroneous or contrary to law. Defendants 

further request that the Court Order Kelly to attend the deposition scheduled for October 15, 

2018, and produce any and all requested documents in her possession. 

Respectfully submitted, 

/s/ Matthew R. Byrne 

Matthew R. Byrne (0082228) 

JACKSON LEWIS P.C. 

PNC Center, 26th Floor 

201 E. Fifth Street 

Cincinnati, Ohio 45202 

Telephone: (513) 898-0050 

Facsimile: (513) 898-0051 

Email: matthew.byrne@jacksonlewis.com 

Local Counsel for Defendants 

Of Counsel: 

Gillian A. Cooper, Esq. (admitted pro hac vice) 

650 College Road East, Suite 4000 

Princeton, New Jersey 08540 

T: (609) 452-5021 

Gillian.Cooper@saul.com 

Attorneys for Defendants

Dated: October 5, 2018 

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 9 of 10 PAGEID #: 691
-10- 

CERTIFICATE OF SERVICE

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

via regular mail 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: October 5, 2018

Case: 1:18-mc-00010-SJD-SKB Doc #: 25 Filed: 10/05/18 Page: 10 of 10 PAGEID #: 692