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Troy D. Itskin v. Gloria D. Gibson

November 7, 2011


The opinion of the court was delivered by: Magistrate Judge E.A. Preston Deavers

Judge Edmund A. Sargus


This matter is before the Court for consideration of Defendant Gloria Gibson's Motion to Compel. (ECF No. 21.) Defendant seeks to compel discovery requests relating to a private investigator who Plaintiff hired prior to this litigation. Plaintiff maintains that information concerning his private investigator is not discoverable because it is privileged under Ohio law, constitutes work product, and is not relevant to the remaining claims in this case. For the reasons that follow, Defendant's Motion to Compel is GRANTED subject to the conditions outlined below.


Plaintiff Troy D. Itskin filed his Complaint against Defendant Gloria D. Gibson in August 2010. Plaintiff's claims included that Defendant, through her intimate relationship with Plaintiff's father, Darrel Itskin, intentionally interfered with his expectancy of inheritance. In March 2011, Defendant filed a Counterclaim against Defendant for defamation, maintaining that Plaintiff made several false public accusations concerning her conduct.*fn1 On July 22, 2011, Plaintiff moved to dismiss his action without prejudice citing personal and family considerations. The Court granted Plaintiff's Motion for Voluntary Dismissal, noting that Defendant's Counterclaim remained pending.

Defendant moved to compel a response to various discovery requests in July 2011. She maintains that Plaintiff hired a private investigator to perform surveillance and investigate her. According to Defendant, the private investigator met with Darrel Itskin to discuss the findings of the investigation. Additionally, Defendant contends that when she met the private investigator, the private investigator informed her that Plaintiff intended to file a lawsuit. Defendant asserts that during these meetings the private investigator showed her and Darrel Itskin photographs and other documents.

In her Motion to Compel, Defendant asserts that in responding to her first set of discovery requests, Plaintiff failed to provide any documents from his private investigator. Accordingly, within Defendant's second set of discovery requests, she asked Plaintiff to identify the private investigator and produce all photographs, recordings, and documents that the investigator obtained. Defendant indicates that Plaintiff has failed to respond to such requests. Additionally, the parties appear to dispute whether Defendant may depose Plaintiff's private investigator. (See Ex. C--D, ECF No. 21-2.)

In opposing Defendant's Motion to Compel, Plaintiff provides three basic rationales for withholding the private investigator's materials. First, Plaintiff maintains that all of the discovery Defendant seeks relating to his private investigator is privileged pursuant to Ohio Revised Code § 4749.13(B). Plaintiff emphasizes that he never identified, and never intended to call, his private investigator as a witness in this case. Second, Plaintiff contends that information regarding Plaintiff's private investigator is no longer relevant. In making this contention, Plaintiff emphasizes that he has voluntarily dismissed his claims against Defendant, and only Defendant's Counterclaim remains. Finally, Plaintiff maintains that the information Defendant requests is within the scope of the work-product doctrine.


Determining the scope of discovery is within the Court's discretion. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). Federal Rule of Civil Procedure 37 allows a party to file a motion to compel when the opposing party fails to provide a response, or provides an incomplete response, to interrogatories or requests for documents. Fed. R. Civ. P. 37(a).

As the United States Court of Appeals for the Sixth Circuit has recognized, "[t]he scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad." Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998). In particular, discovery is more liberal than the trial setting, as Rule 26(b) allows any "line of interrogation [that] is reasonably calculated to lead to the discovery of admissible evidence." Id. (quoting Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). In other terms, the Court construes discovery under Rule 26 "broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In considering the scope of discovery, the Court should balance a party's "right to discovery with the need to prevent 'fishing expeditions.'" Conti v. Am. Axle and Mfg., Inc., 326 F. App'x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367).

Of course, if the information sought relates to a matter that is privileged, the generally broad scope of discovery does not apply. See Fed. R. Civ. P. 26(b)(1) ("Parties may obtain discovery regarding any non-privileged matter that is relevant . . . ."). Additionally, a party may not ordinarily discover documents or other materials "prepared in anticipation of litigation . . . ." Fed. R. Civ. P. 26(b)(3). Nevertheless, if a party withholds information based on privileged or the work-product doctrine, the party is required to explicitly make such a claim and "describe the nature of the documents, communications, or tangible things not produced or disclosed-and in doing so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5); see also Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., No. 2:07-cv-1190, 2010 WL 4117552, at *5 (S.D. Ohio Oct. 19, 2010) (providing that a privilege log is "required by Fed. R. Civ. P. 26(b)(5) in order to alert the opposing parties that documents have been withheld on grounds of privilege . . . ."). Furthermore, "[t]he burden of establishing the existence of the privilege rests with the person asserting it." United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999); see also Jones v. St. Jude Med. S.C., Inc., No. 2:08-cv-1047, 2011 WL 829086, at *4 (S.D. Ohio Mar. 3, 2011) (indicating that if documents in question are otherwise discoverable, a party opposing discovery pursuant to the work-product doctrine bears the burden of demonstrating that the documents in question were prepared in anticipation of litigation).


As detailed above, Plaintiff maintains that Defendant is not entitled to discovery regarding any matters related to his private investigator on three separate grounds. The Court turns first to the issue of relevancy and ...

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