IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RONALD A. PIZZUTI, 

 Plaintiff, 

 Case No. 2:18-mc-0040 

 

 vs. Judge Algenon L. Marbley 

 Chief Magistrate Judge Elizabeth P. Deavers 

 

NASHVILLE HOSPITALITY 

CAPITAL, LLC, 

 

Defendant. 

OPINION AND ORDER 

 This matter is before the Court for consideration of the Motion to Quash and for 

Protective Order filed by Movant Ronald A. Pizzuti (“Ron Pizzuti”) (ECF No. 1), Nashville 

Hospitality Capital LLC’s (“NHC”) Memorandum in Opposition (ECF No. 40) and Pizzuti’s 

Reply (ECF No. 11). For the reasons that follow, the Motion is GRANTED. 

I. 

A. Background for Subpoena 

Ron Pizzuti is the Founder, Chairman and Chief Executive Officer of the Pizzuti 

Companies, a real estate development group headquartered in Columbus, Ohio. The Pizzuti 

Companies currently are involved in the construction of a luxury hotel in downtown Nashville, 

Tennessee named the Joseph Nashville (the “Joseph Nashville”). 

NHC owns an upscale, full-service hotel property also located in downtown Nashville, 

which it operates as a Westin hotel (“the Westin”). In December 2013, NHC engaged 

Wischermann Partners, Inc. (“Wischermann Partners”) as a consultant to help develop the 
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Westin. Pursuant to that Consulting Agreement, Wischermann Partners and Paul Wischermann, 

its President and CEO, were involved in the development, design, and construction of the 

Westin. In November 2014, NHC engaged Wischermann Partners to serve as the management 

company for the Westin. The Management Agreement between NHC and Wischermann 

Partners contained a non-compete provision that prohibited Wischermann Partners from 

developing, owning, operating, or managing any hotel within a one-mile radius of the Westin. 

The Management Agreement also contained a confidentiality provision that prohibited 

Wischermann Partners from disclosing NHC’s confidential information. 

 NHC maintains that Wischermann Partners and Paul Wischermann had been providing 

identical development services to its competitor, the Joseph Nashville, which is located less than 

one mile from the Westin, beginning in February 2014. NHC asserts that Wischermann Partners 

and Paul Wischermann failed to disclose that they were working for the Pizzuti Companies when 

they signed the Management Agreement containing the non-compete provision in November 

2014. 

 The subpoena arises out of the lawsuit pending in the in the United States District Court 

for the Middle District of Tennessee in Nashville, Tennessee involving the development and 

management of the Westin in Nashville. Wischermann Partners, Inc., et al. v. Nashville 

Hospitality Group, No. 3:17-cv-00849 (M.D. Tenn.). NHC is a Defendant and Counter-Plaintiff 

in this breach of contract dispute with Wischermann Partners. In its counterclaim in the 

Nashville Westin case, NHC alleges that Wischermann Partners breached a non-compete 

agreement with NHC when it simultaneously was working as a development consultant for 

Pizzuti developing the Joseph Nashville. 
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In 2017, NHC subpoenaed the Pizzuti affiliate in charge of the Joseph Nashville project, 

seeking all documents and communications involving Wischermann Partners. (Declaration of 

Joel D. Eckert (“Eckert Dec.”) at ¶ 4.) Pizzuti produced 5,591 documents totaling 21,834 pages 

of materials at a cost of approximately $42,000. (Id. at ¶¶ 6–7.) 

In May 2018, NHC subpoenaed Joel S. Pizzuti (President of Pizzuti), Daniel Gore (Vice 

President of Development of Pizzuti), and Ronn H. Stewart, II (Senior Vice President of 

Construction of Pizzuti) for depositions. According to Pizzuti, these three high-ranking Pizzuti 

officials are the decision makers on the Nashville Joseph project. Pizzuti allowed all three men 

to be deposed by NHC in September 2018 in Columbus, Ohio. On July 24, 2018, NHC 

subpoenaed Mr. Ronald Pizzuti for deposition. 

B. Ron Pizzuti’s Involvement in the Joseph Nashville Development and with 

Wischermann 

The parties’ chief dispute in this matter relates to the level of involvement Ron Pizzuti 

had in the construction and development of the Joseph Nashville and with Wischermann 

Partners. NHC insists that Pizzuti’s deposition is necessary to permit NHC to fully develop facts 

relevant to defending itself and supporting its counterclaim in the Nashville litigation. It 

maintains that Pizzuti was a “key figure” in the development of Nashville Joseph, which is “at 

the center” of the underlying litigation. (NHC’s Mem. in Opp., ECF No. 6, at p. 1.) 

NHC summarizes Pizzuti’s involvement as follows: 

Ron Pizzuti is the CEO of Pizzuti. This is not a case where the deponent executive 

has little or no knowledge of discoverable information relating to the issues in the 

Lawsuit. Pizzuti’s marketing materials related to the Pizzuti Nashville project 

identify Ron Pizzuti as the “Proposed Master Developer” of the project and 

identify him as one of the project’s “Key Personnel.” . . . Mr. Pizzuti’s 

memorandum in support of his Motions admits he was included on 275 emails 

related to the project, and Mr. Pizzuti’s name is mentioned in 448 documents in 

Pizzuti’s production alone. . . . Mr. Pizzuti’s own declaration acknowledges his 
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longstanding involvement with the Pizzuti Nashville project. . . . Moreover, Mr. 

Pizzuti admits that he attends “weekly, monthly and quarterly executive 

committee meetings” where he receives “progress reports” on the Pizzuti 

Nashville project, showing that Mr. Pizzuti receives information on the project at 

the core of the Middle District of Tennessee action on at least a weekly basis. . . . 

Discovery in the Lawsuit has also revealed that Mr. Pizzuti received regular 

updates on the specific status of the Pizzuti Nashville project and was copied 

along with Paul Wischermann and other Wischermann Partners employees on 

detailed discussions of the Pizzuti Nashville project. . . . Additionally, materials 

produced by Pizzuti and other contractors confirm that Mr. Pizzuti attended and 

provided feedback related to several design and development meetings for the 

Pizzuti Nashville project. . . . In fact, Wischermann Partners’ interrogatory 

responses delivered this past Friday confirm that Ron Pizzuti attended meetings in 

Nashville with Wischermann Partners and others related to the Pizzuti Nashville 

project. . . . 

(Id. at pp. 4-5) (citations to record and exhibits omitted). 

Ron Pizzuti maintains that his involvement in the Joseph Nashville project and 

interactions with Wischermann were much more limited than NHC suggest. Ron Pizzuti has 

demonstrated the following facts through supporting declarations. Although he still has the title 

of Chairman and CEO, Ron Pizzuti has been phasing out his involvement in the day-to-day 

operations of the organization for five years and passed those responsibilities, including 

operational and strategic decision-making and executive-level project management, to his son, 

Joel Pizzuti. (Pizzuit Dec. ¶ 3.) He currently spends the majority of his time managing a nonprofit art museum in Columbus, Ohio called the Pizzuti Collection. (Id. at ¶ 13.) 

Joel Pizzuti assumed management responsibility for the Joseph Nashville since its 

inception. Id. at ¶¶ 5-6. With respect to his involvement in the Nashville Joseph, Ron Pizzuti 

acknowledges that he has been involved in the following activities: (1) he attends weekly, 

monthly and quarterly executive committee meetings at Pizzuti’s Columbus, Ohio office at 

which he receives a progress report on all Pizzuti projects, including the Joseph Nashville but 

that Joel Pizzuti runs these meetings; (2) he attended some design meetings regarding the Joseph 
5 

Nashville; and (3) he is selecting the art that will go in the Joseph Nashville. He also had one 

impromptu meeting in New York City with the interior designer of the Joseph Nashville. He is 

not aware of any meeting that he attended or conference call in which he participated regarding 

the Joseph Nashville that Joel Pizzuti, Dan Gore, and/or Ronn Stewart did not also attend or 

participate. (Id. at ¶ 10.) Ron Pizzuti has never been inside the Westin in Nashville. (Id. at ¶ 

11.) He believes he has only seen Paul Wischermann one time over the last year at the 

ceremonial groundbreaking party for the Joseph Nashville in June of 2018. (Id. at ¶ 12.) 

 Of the 5,591 documents Pizzuti produced to NHC, Ron Pizzuti sent a total of 15 emails. 

(Eccert Dec. at ¶ 16.) Of those 15 emails, 8 of them were not responsive to the Subpoena 

because they relate to a hotel in Columbus and not the Nashville Joseph. (Id.) Ron Pizzuti 

therefore sent a total of 7 responsive emails of the 5,591 documents Pizzuti produced. (Id. at ¶ 

17.) One email involved Ron Pizzuti telling Dan Gore to make sure Mr. Gore was on an email 

chain. He forwarded another email to Mr. Gore with no text presumably for Mr. Gore to 

address. The other five emails dealt with Ron Pizzuti replying to people associated with the 

Joseph Nashville attempting to schedule meetings. Id. None of the emails with which Ron 

Pizzuti is associated related to a substantive matter involving the Joseph Nashville. 

 Only 4 emails were sent directly to Ron Pizzuti (as opposed to carbon copying him), all 

of which were from Mr. Gore. Two involved scheduling meetings and two involved forwarding 

Pizzuti design updates from one of the architects on the Project. (Id. at 18.) Joel Pizzuti was 

copied on all but one of the emails Pizzuti received. (Id. at ¶ 19.) The one email Joel Pizzuti 

was not copied on was inconsequential. Id. In total, searching the production for “Ron Pizzuti,” 

“Pizzuti Ron,” and by his email address generated only 448 documents, which is composed of: 

(1) the 275 mostly inconsequential emails; (2) meeting minutes usually listing him as someone 
6 

who the minutes were distributed to (all of which were also distributed to Joel Pizzuti); and (3) 

documents, such as requests for financing or requests for bid documents which list all executive 

officers in the company but do not bear on his knowledge or involvement in the Joseph 

Nashville. (Id. at ¶ 20.) 

II. 

 Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. Fed. R. 

Civ. P. 45. Rule 45 permits parties in legal proceedings to command a non-party to attend a 

deposition, produce documents, and/or permit inspection of premises. Fed. R. Civ. P. 45(a)(1). 

The Rule provides that the person commanded to produce documents may serve an objection on 

the party or attorney designated in the subpoena within the earlier of fourteen days after the 

subpoena is served or the time specified for compliance. Fed. R. Civ. P. 45(d)(2)(B). Upon a 

timely motion to quash, a court “must quash or modify a subpoena that . . . “subjects a person to 

undue burden.” Fed. R. Civ. P. 45(d)(3)(A). 

Determining the scope of discovery is within this Court’s discretion. Bush v. Dictaphone 

Corp., 161 F.3d 363, 367 (6th Cir. 1998). In particular, discovery is more liberal than the trial 

setting, as Rule 26(b) allows discovery “regarding any nonprivileged matter that is relevant to 

any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 

In considering the scope of discovery, the Court may balance Plaintiff's “right to discovery with 

the need to prevent ‘fishing expeditions.’” Conti v. Am. Axle & Mfg., Inc., 326 F. App’x 900, 

907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367); see also See Brown v. Mohr, No. 2:13-cv0006, 2017 WL 2832631, at *1 (S.D. Ohio June 30, 2017) (noting that “recent amendments to 

Fed. R. Civ. P. 26(b)(1) highlight certain proportionality factors which the parties are to consider 

in making discovery requests, responses, or raising objections”) (citations omitted). The Court in 
7 

all instances “must limit the frequency or extent of discovery otherwise allowed by these rules . . 

. if it determines that . . . the discovery sought is unreasonably cumulative or duplicative, or can 

be obtained from some other source that is more convenient, less burdensome, or less 

expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). 

Rule 26(c) affords district courts with the discretion to further limit the scope of 

discovery under certain circumstances. Specifically, a court may issue a protective order 

“forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to 

certain matters” to prevent “annoyance, embarrassment, oppression, or undue burden or 

expense” where the movant has established good cause for such an order. Fed. R. Civ. P. 

26(c)(1); Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001). “To show good cause, a movant 

for a protective order must articulate specific facts showing clearly defined and serious injury 

resulting from the discovery sought and cannot rely on mere conclusory statements.” Id.

(internal quotation marks and citation omitted). 

Accordingly, if the Court finds the burden of the deposition undue, or unreasonably 

cumulative or duplicative, or can be obtained in more convenient less burdensome manner, the 

Court must quash the subpoena or issue a protective order. 

III. 

 The question in this case is not whether Pizzuti has any discoverable information relevant 

to NHC’s claims and defenses in the underlying Nashville litigation. The issue turns on whether 

Pizzuti has asserted specific facts showing good cause to forbid the deposition from going 

forward. The Court concludes that he has and that the discovery NHC seeks may be obtained 

through the depositions of Joel S. Pizzuti, Daniel Gore and Ronn H. Stewart, II. Ron Pizzuti 

may have some limited knowledge of Wischermann’s involvement in the Joseph Nashville, but 
8 

NHC has not demonstrated that such limited, duplicative knowledge justifies his deposition in 

light of the fact that NHC has been permitted to take the depositions of Joel Pizzuti, Mr. Gore, 

and Mr. Stewart. 

NHC cites to a number of documents produced in discovery in the underlying action as a 

basis for the deposition of Ron Pizzuti. None of these documents, however, demonstrates that 

Paul Wischermann or any Wischermann entity gave Ron Pizzuti any allegedly confidential 

information regarding the Westin. NHC supports its argument that it must depose Pizzuti by 

reference to an email chain which purportedly reveals that a Wischermann entity gave Pizzuti 

Nashville Hotel officials allegedly confidential information of the Westin at the request of 

“Pizzuti executives and staff.” (NHC’s Opp. at p. 3, ECF No. 6.) Nevertheless, NHC concedes 

a that Dan Gore made this request and received this allegedly confidential information. Id. NHC 

acknowledges that Ron Pizzuti was not on this email chain. NHC points to nothing in the record 

that demonstrates Ron Pizzuti has any knowledge relative to its claims in the underlying action 

which are largely premised on the theory that Wischermann and his companies provided 

confidential information of the Westin to Pizzuti’s Nashville operations. His testimony 

regarding Wischermann’s alleged dissemination of confidential information to Pizzuti Nashville 

employees would be of little to no value to NHC. 

To the extent NHC argues that it is entitled to test the memories of all witnesses, 

including Ron Pizzuti, regarding the events that are the subject of the underlying litigation, the 

Court takes into account the fact that Ron Pizzuti is not a party in that case. The fact that he is 

not a party is a significant factor in the undue-burden analysis. Sinclair v. Lauderdale Cty., Tn., 

2015 WL 1393423, *3 (W.D. Tenn. March 24, 2015) (quoting In re Smirman, 267 F.R.D. 221, 

223 (E.D. Mich. 2010)). Weighing the request to test Ron’s Pizzuti’s memory against the burden 
9 

of submitting to multiple hours of questioning of a non-party weighs heavily against permitting 

the deposition to go forward. 

In any event, the Court concludes that Ron Pizzuti’s testimony would be duplicative of 

any testimony that Joel Pizzuti, Mr. Gore, Mr. Stewart and Wischermann could provide. To this 

end, Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406 (C.D. Cal. 

2014) is instructive. In Amini Innovation, a defendant subpoenaed actress Jane Seymour for a 

deposition to testify about the design of the plaintiff’s products. Id. at 408. Ms. Seymour argued 

that she had a limited role in the design of the products and that the subpoena should be quashed. 

She maintained that she lacked knowledge about the topics about which defendant intended to 

depose her, that such information could more readily be obtained from the plaintiff, and, 

accordingly, her testimony would be duplicative under Federal Rule 26(b)(2)(C). Id. The court 

agreed, finding that the value of her testimony would be “low or at best unknown” and the 

information that the defendant sought could be obtained from plaintiff and its officers. Id. at 

411. The court determined that any deposition “would be an undue burden” and quashed the 

subject subpoena. Id. 

Similarly, here, Ron Pizzuit has put forward through sworn declarations specific facts 

demonstrating he has very limited knowledge of the matters that are the subject of the underlying 

litigation. As such, his deposition would be an undue burden on him, particularly as a non-party 

to the litigation. Moreover, Joel Pizzuti, Mr. Gore, Mr. Stewart and Wischermann can provide 

the discovery sought from Ron Pizzuti regarding Wischermann’s role in the Joseph Nashville. 

Joel Pizzuti, Mr. Gore, or Mr. Stewart attended every meeting that Ron Pizzuti attended 

regarding the Nashville Joseph and one of them was on every email he received or sent regarding 

the Joseph Nashville. The Court concludes that Ron Pizzuti’s deposition is unduly burdensome 
10 

and “unreasonably cumulative or duplicative.” Fed. R. Civ. P. 26(b)(2)(C)(i). The Court, 

therefore, grants his requested relief. 

IV. 

For the foregoing reasons, Ron Pizzuti’s Motion to Quash and for Protective Order (ECF 

No. 1) is GRANTED. NHC is prohibited from taking the deposition of Ronald A. Pizzuti. 

 IT IS SO ORDERED. 

 

/s/ Elizabeth A. Preston Deavers______ 

DATED: October 25, 2018 ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE