United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER GRANTING DEFENDANTS' MOTION TO
COMPEL DISCOVERY AND FOR RELATED RELIEF (DOC. 67)
M. ROSE UNITED STATES DISTRICT JUDGE
case is before the Court upon Defendants' Motion to
Compel Discovery and for Related Relief (“Motion to
Compel”) (Doc. 67). Defendants seek the production of
communications between Plaintiffs' counsel and Gayle
Hites, a non-party witness. Plaintiffs submitted Ms.
Hites' declaration in support of their Motion for Class
Certification and Motion for Summary Judgment. Defendants
argue that the communications between Plaintiffs' counsel
and Ms. Hites should have been produced during discovery, but
were improperly withheld. Plaintiffs counter that the
communications are not responsive to any of Defendants'
discovery requests and, even if they were responsive, they
are protected from disclosure by the attorney work product
discovery dispute stems from Defendants' motion to strike
three declarations that Plaintiffs submitted in support of
their Motion for Summary Judgment. One of those declarations
was by Ms. Hites. Ms. Hites' declaration provided
information regarding her experience with the City of
Oakwood's pre-sale inspection process-the process at the
heart of this lawsuit. Defendants objected to Ms. Hites'
declaration on evidentiary grounds and because she was not
identified as a witness in response to an interrogatory
seeking the identification of Plaintiffs' witnesses. The
Court granted Defendants' motion to strike Ms. Hites'
declaration and ordered that Defendants be permitted an
opportunity to depose Ms. Hites.
served a subpoena duces tecum on Ms. Hites and
scheduled her deposition for March 19, 2017. Defendants were
informed that, although Ms. Hites did not have documents
responsive to the subpoena, Plaintiffs' counsel had email
communications between them and Ms. Hites. Plaintiffs'
counsel initially objected to production of the
communications, but later changed course and agreed to
produce some, but not all, of those communications.
Defendants' counsel was not satisfied with the documents
produced, canceled Ms. Hites' scheduled deposition, and
notified the Court of the parties' discovery dispute. On
March 20, 2017, the Court held a teleconference with the
parties and shortly thereafter ordered Plaintiffs to produce
a privilege log identifying all of the communications
withheld, which Plaintiffs did. Defendants' motion to
produce all of the documents on that privilege log is now
before the Court.
light of this history, the parties' disagreement
regarding whether Plaintiffs' communications with Ms.
Hites are within the scope of Defendants' prior discovery
requests is not dispositive. Even if Defendants did not
request these specific communications, the Court could excuse
that failure since they were not timely notified of
Plaintiffs' intent to rely on Ms. Hites' testimony.
In any event, Defendants' Request No. 5 is a broad
request for “any and all recordings, videos,
photographs, text messages, emails, screen shots, calendars,
diaries, journals, notes and documents Plaintiffs possess
that relate to any and all claims asserted in their First
Amended Complaint.” (Doc. 67-4.) Communications between
Plaintiffs' counsel and Ms. Hites are reasonably within
the scope of this Request and should have been produced or
placed on a privilege log.
argument that the withheld communications are attorney work
product fails. Plaintiffs first argue that the communications
are irrelevant, so the Court need not get to the question of
whether or not they are work product. The Court has reviewed
the withheld documents in camera. Generally, they
relate to Ms. Hites' declaration and preparation for her
deposition. The communications are relevant to the issues in
this case. Their utility or significance may be up for
debate, but they are certainly relevant.
communications are not protected from disclosure by the
attorney work product doctrine because Plaintiffs'
counsel did not maintain their confidentiality. In Behnia
v. Shapiro, 176 F.R.D. 277 (N.D. Ill. 1997), the
District Court addressed this very issue and concisely stated
the law as follows:
Protection under the work-product doctrine can be waived in
certain circumstances. See United States v. Nobles,
422 U.S. 225, 45 L.Ed.2d 141, 95 S.Ct. 2160 (1975). One
situation in which the work-product protection might be
waived is when the document has been voluntarily disclosed to
a third party. Bramlette v. Hyundai Motor Co., 1993
U.S. Dist. LEXIS 12112, No. 91 C 3635, 1993 WL 338980, at *3
(N.D. Ill. Sept. 1, 1993); see also Williams v.
Musser, 1995 U.S. Dist. LEXIS 784, No. 94 C 4140, 1995
WL 27394, at *2 (N.D. Ill. Jan. 23, 1995); In re Quantum
Chem./Lummus Crest, 1992 U.S. Dist. LEXIS 5448, No. 90 C
778, 1992 WL 71782, at *3 (N.D. Ill. Apr. 1, 1992). Unlike
the attorney-client privilege, mere disclosure to a third
party is insufficient to waive work-product protection;
rather, waiver of work-product protection occurs only if the
disclosure to the third party “substantially increases
the possibility for potential adversaries to obtain the
information.” Bramlette, 1993 U.S. Dist. LEXIS
12112, 1993 WL 338980, at *3. The question is whether the
particular disclosure was of such a nature as to enable an
adversary to gain access to the information. Union Pac.
Resources Co. v. Natural Gas Co. of Am., 1993 U.S. Dist.
LEXIS 9855, No. 90 C 5378, 1993 WL 278526, at *3 (N.D. Ill.
July 20, 1993).
Id. at 279-280.
Defendants made the communications at issue in a manner that
enabled Defendants to obtain access to them, waiving the
protection of the attorney work product doctrine. The
communications were between Plaintiffs' counsel and Ms.
Hites, a non-party witness. Plaintiffs have not argued-nor
could they-that Ms. Hites is not subject to discovery.
have subpoenaed Ms. Hites for deposition and the production
of documents. They cannot obtain copies of the communications
from Ms. Hites, however, because she is in the process of
moving and, as represented by Plaintiffs' counsel,
“is not good with technology and does not know how to
get the information off of her computer, etc.” (Doc.
67-1 at 9.) These facts also support discovery of the
communications under Federal Rule of Civil Procedure 26,
which states that attorney work product ordinarily is not
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3)(A)(i)-(ii). The communications are
relevant to the parties' claims and defenses and
therefore discoverable under Rule 26(b)(1). In addition,
Defendants have a substantial need for the communications to
explore the facts underlying Ms. Hites' declaration at
her deposition. Lastly, because Ms. Hites does not have
access to the ...