UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

WCR, INCORPORATED,

Plaintiff,

vs.

WESTERN CANADA PLATE 

EXCHANGER, LTD., et al.,

Defendants.

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Case No. 3:18-cv-00278

 3:20-cv-00143

District Judge Michael J. Newman

Magistrate Judge Sharon L. Ovington

ORDER

In 2018, Plaintiff WCR, Incorporated brought a breach-of-contract case against 

Defendant Western Canada Plate Exchanger, Ltd. (Western Canada Plate). WCR v. 

Western Canada Plate, 3:18cv00278. During discovery, WCR learned that Western 

Canada Plate’s President, Earl Strohschein, allegedly used another similarly named 

company—Western Canada Heat Exchanger, Ltd. (Western Canada Heat)—to funnel 

business (and, hence, money) away from WCR. This, in WCR’s view, constituted fraud

and breach of WCR’s contract with Western Canada Plate, and unjustly enriched Western 

Canada Heat. WCR therefore brought a second case in this Court, WCR v. Western 

Canada Heat, 3:20cv00143. The Court recently consolidated WCR’s two cases.

The cases are before the Court upon WCR’s Motion to Compel (Doc. No. 36), 

Western Canada Plate’s Memorandum in Opposition (Doc. No. 39), and WCR’s Reply 

(Doc. No. 43). WCR seeks an order accomplishing three goals: (1) requiring Western 

Canada Plate’s representative to appear for a remote-video deposition pursuant to Fed. R. 

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Civ. P. 30(b)(6); (2) ordering Western Canada Plate to provide complete answers to 

WCR’s Requests for Admission; and (3) ordering Western Canada Plate to provide 

complete answers to WCR’s Interrogatories.

As will be seen, the solutions to the parties’ present discovery disputes are

practical.

I. Remote-Video Deposition

Western Canada Plate does not object to proceeding by remote video with the

deposition of its Rule 30(b)(6) witness. (Doc. No. 39, PageID 358). It instead contends 

that it has the right to have its counsel present in Canada during the deposition of its Rule 

30(b)(6) witness, and its counsel needs the opportunity to prepare him or her in person for 

the deposition. Western Canada Plate emphasizes, “as a foreign Canadian company ...

being subjected to suit in the United States of American [sic] ... it should have the right 

to have its United States counsel present at its deposition, especially where, presumably, 

WCR will have its counsel present at its 30(b)(6) deposition.” Id. at 359.

WRC argues that Western Canada Plate does not have an absolute right to have its 

counsel present in Canada during the video deposition.

“The parties may stipulate—or the court may on motion order—that a deposition 

be taken by telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). The COVID-19 

pandemic and its serious health risks, including the risk of death, heavily favor 

minimizing in-person contacts and travel, both domestic and international. Reality—well 

documented by science and statistics—continues to show that “[t]he COVID-19 virus is 

highly infectious and can be transmitted easily from person to person. COVID-19 fatality 

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rates increase with age and underlying health conditions such as cardiovascular disease, 

respiratory disease, diabetes, and immune compromise. If contracted, COVID-19 can 

cause severe complications or death.” Wilson v. Williams, 961 F.3d 829, 833 (6th Cir. 

2020). Tragically, as of today, the number of deaths from COVID-19 in the United 

States exceeds 302,000; in Canada over 13,600; and worldwide over 1.6 million,

with no determinable end date in sight. JOHNS HOPKINS UNIV. MED., Coronavirus 

Resource Ctr., https://coronavirus.jhu.edu (last visited Dec. 15, 2020). Although the 

recently available vaccine provides room for long-term optimism, the pandemic 

continues unabated in the short term.

In light of this harsh reality, the Court and the parties face many new challenges to 

case administration that demand practical solutions. The parties’ present dispute over the 

video deposition of Western Canada Plate’s Rule 30(b)(6) witness is one such challenge. 

The practical solution is that the deposition must occur in Canada by remote video. 

“[D]uring the current pandemic, ‘[v]ideo or teleconference depositions and preparation 

are the ‘new normal’ and most likely will be for some time. Litigation cannot just come 

to an indefinite halt.’” Damron v. Liberty Mutual Ins. Co., 2020 WL 3071850, at *1 

(E.D. Mich. 2020) (quoting Wilkens v. ValueHealth, LLC, No. 19-1193-EFM-KGG, 2020 

WL 2496001, at *2 (D. Kan. May 14, 2020) (additional citation omitted)).

But must Western Canada Plate’s counsel be present during the remote video 

deposition? Western Canada Plate says “yes,” contending that it has an absolute right to 

have its counsel present. WCR says there is no such absolute right. WCR is correct

because of the present circumstances the COVID-19 pandemic has created. If the Court 

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were to recognize that Western Canada Plate has an absolute right to have its counsel 

present in Canada during the deposition, two possible results could emerge: (1) Counsel 

would be required to travel to Canada to be present at the deposition, thus risking her 

own health, further community spread of the disease, and the possibility of her lengthy 

quarantine in Canada; or (2) these cases would essentially grind to a halt while everyone 

waits for the pandemic to subside so that counsel can be present at the deposition. 

Neither result is acceptable.

The practical solution is that the deposition must go forward by remote video in 

the near future with or without Western Canada Plate’s counsel present in Canada. To 

find otherwise would halt meaningful progress towards resolution of this case (whether 

by motion, mediation, or trial) and could lead to evidence becoming stale as memory 

inevitably fails. Given the technology now available, there is no significant difference 

between defense counsel sitting next to her client in the same room or by video. When 

warranted, counsel and her client can separately and privately confer during the 

deposition through a separate Zoom channel or via FaceTime.

To support its contention that it has an absolute right to have its counsel present 

during the deposition of its Rule 30(b)(6) witness, Western Canada Plate relies on a preCOVID-19 pandemic case, Redmond v. Poseidon Pers. Servs., S.A., No. CIV.A. 09-2671, 

2009 WL 3486385, at *3 (E.D. La. 2009). Redmond states, “Denying [the corporation] 

the opportunity to have its attorney present during the Rule 30(b)(6) deposition would 

inhibit defense counsels’ duty to effectively and competently represent their foreign 

clients.” Redmond, however, offers no explanation of whether or why this is always true 

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or why a remote defense of a video deposition will always deprive a party of effective 

and competent legal representation. Moreover, Redmond is not controlling authority in 

this Court and, given its lack of reasoning, is not strong authority—especially during the 

ongoing pandemic—for finding that a party has an absolute right to have its counsel 

present during a video deposition of its Rule 30(b)(6) witness. See Damron, 2020 WL 

3071850, at *1 (“[D]uring the current pandemic, ‘[v]ideo or teleconference depositions 

and preparation are the ‘new normal’ and most likely will be for some time. Litigation 

cannot just come to an indefinite halt.’” (citation omitted)).

Western Canada Plate’s counsel insists that she needs to prepare its Rule 30(b)(6) 

witness in person. This is surely preferable, but it is not a sufficient reason to further 

delay these cases in light of the pandemic. The undersigned Judicial Officer agrees with 

the following cogent comments in a recent decision by a U.S. Magistrate Judge in 

Illinois:

The Court is not blind to nor is it ignoring the very real challenges involved 

in conducting remote video depositions in a case like this with so many 

parties and lawyers. But unless the Court is going to stay all depositions that 

cannot proceed by agreement (whether in-person or remotely) until there is 

a cure or a vaccine for COVID-19, or something approaching so-called herd 

immunity, which it is unwilling to do on a blanket basis, the parties and their 

counsel are going to have to have to adapt, make some choices, be creative, 

and compromise in this and every other case in which they are involved 

during this time without modern precedent.

In re Broiler Chicken Antitrust Litig., No.1:16-cv-08637, 2020 WL 3469166, at *5 (N.D.

Ill. 2020) (Gilbert, M.J.).

All of the above does not prevent Western Canada Plate’s counsel from travelling 

to Canada to be present at the remote-video deposition of its Rule 30(b)(6) witness. 

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Western Canada Plate’s counsel retains the option either to travel to Canada to be present 

at the video deposition of her client’s Rule 30(b)(6) witness or to remotely defend the 

video deposition.

Western Canada Plate also asks the Court to order depositions to proceed remotely 

as to the Canadian parties and all Canadian fact witnesses. For the reasons stated above, 

this request is sensible and practical.

II. Requests for Admissions and Interrogatories

WCR seeks an order requiring Western Canada Plate to respond to its requests for 

information known to, in the possession or control of, or readily available to Western 

Canada Plate and its President Earl Strohschein. WCR asked Western Canada Plate for 

this information in its Requests for Admission Nos. 2, 5-13, 17-20, and 22, as well as 

Interrogatory Nos. 21 and 22.

Western Canada Plate argues that it cannot admit or deny these Requests for 

Admission or answer these Interrogatories because WCR seeks information from nonparties (Strohschein, Western Canada Heat, and Salarix) to its original breach-of-contract 

case against Western Canada Plate. Consolidation, however, has changed the status of 

Western Canada Heat and Strohschein: They are now parties in the cases WCR has 

brought. Salarix is not a party in either case.

Western Canada Plate further contends that it is a company separate from Western 

Canada Heat and Salarix and cannot answer on their behalf. As a factual matter, it is an 

issue in the case whether Western Canada Plate and Western Canada Heat are truly 

separate companies. WCR contends that they are not and that Strohschein intermingled 

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them to evade Western Canada Plate’s contractual duties and to commit fraud. WCR 

therefore insists that Western Canada Plate can respond to the substance of the Requests 

for Admission and Interrogatories about Western Canada Plate, Salarix, and Strohschein.

Western Canada Plate overlooks the strong connection Strohschein has with both 

Western Canada Plate and Western Canada Heat. In Strohschein’s sworn Declaration 

(submitted previously in this case), he stated that he is the President of Western Canada 

Plate. (3:18cv278, Doc. No. 14, PageID 104; see Doc. No. 36, PageID 315-16). He 

stated in another sworn Declaration (in the consolidated case) that he is “an officer” of 

Western Canada Heat. (3:20cv143, Doc. No. 15, PageID 93).

WCR correctly recognizes that business entities, corporations and the like, “of 

course, are artificial persons, and as such they can act only through human agents. The 

officers of a corporation are its agents for many purposes, and where an agent acts within 

the course and scope of his employment, his actions are generally imputed to the 

corporation.” Diamond Club v. Insurance Co. of N. Am., No. 91-3277, 1993 WL 170964, 

at *4 (6th Cir. 1993). Strohschein’s positions as President of Western Canada Plate and 

an officer of Western Canada Heat place him in this position. 

Yet, now that consolidation has drawn in both Strohschein and Western Canada 

Heat as Defendants, the parties face much different circumstances than when Western 

Canada Plate received WCR’s Requests for Admission and Interrogatories. What began 

as objections to discovery in a single case have become central issues in the consolidated 

cases concerning whether Western Canada Plate and Western Canada Heat are truly 

separate companies or whether Strohschein intermingled them as part of a scheme to 

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defraud WCR. This means that Western Canada Plate is either a primary or a secondary 

source of the information WCR seeks in its Requests for Admission and Interrogatories. 

If, on the one hand, Western Canada Plate has been intermingled as WCR alleges, then it 

is a primary source of at least some information about Western Canada Heat. If, on the 

other hand, Western Canada Plate is a company truly separate from Western Canada 

Heat, then it is a secondary source of information about Western Canada Heat. Because 

of this, the utility of WCR’s Requests for Admission and Interrogatories directed solely 

to Western Canada Plate has become questionable. And, now that Western Canada Heat 

and Strohschein are parties to the case, they are better sources for the information WCR 

seeks about them. The solution again is practical: Rather than requiring Western Canada 

Plate to further respond to WCR’s Requests for Admission and Interrogatories, 

depositions of both companies and Strohschein will target the primary sources of the 

information. Cf. Misco, Inc. v. U.S. Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986) 

(“Requests for admissions are not a general discovery device.”); Khami v. Ortho–

McNeil–Janssen Pharm., Inc., 2011 WL 996781 at *2 (E.D. Mich. 2011) (Rule 36’s 

“proper use is as a means of avoiding the necessity of proving issues which the 

requesting party will doubtless be able to prove.” (other citation omitted)); Wright, 

Miller, & Marcus, Federal Practice & Procedure, § 2253 (3d Ed. 2010) (“Strictly 

speaking Rule 36 is not a discovery procedure at all, since it presupposes that the party 

proceeding under it knows the facts or has the document and merely wishes its opponent 

to concede their genuineness.” (other citations omitted)).

Lastly, in the event the parties have exhausted their extrajudicial means for 

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resolving any future discovery issues without resolution, they are encouraged to contact 

the undersigned Judicial Officer’s Courtroom Deputy to schedule an informal telephone 

conference before filing additional discovery motions. See S.D. Ohio Civ. R. 37.1.

IT IS THEREFORE ORDERED THAT:

1. WCR’s Motion to Compel (Doc. No. 36) is granted, in part, and the parties 

shall proceed with the remote video depositions of witnesses who reside in 

Canada; and

2. WCR’s Motion to Compel (Doc. No. 36) is denied in remaining part. 

December 16, 2020 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

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