United States District Court, S.D. Ohio, Western Division
ASHLEY BARD, individually and as the administrator for the Estate of Zachary Ryan Goldson, Plaintiff,
Brown County, et al., Defendants.
J., Litkovitz, M.J.
L. Litkovitz United States Magistrate Judge
Ashley Bard brings this action against defendants Brown
County, Ohio; Brown County Sheriff Dwayne Wenninger; Brown
County Sheriff's Office employees Ryan Wedmore, Larry
Meyer, Jason Huff, George Dunning, Zane Schadle, and Sarah
McKinzie; and two John Doe/Jane Doe defendants. Plaintiff
brings this action individually and on behalf of decedent
Zachary Ryan Goldson, alleging civil rights violations
arising out of Goldson's death on October 5, 2013, during
his incarceration as a pretrial detainee at the Brown County
Jail. The matter is before the Court on non-party Dennis
Varnau's motion to quash a subpoena issued by defendants
(Doc. 15) and defendants' memorandum in opposition to the
motion (Doc. 18). The matter is also before the Court on
supplemental briefs the parties filed following an informal
telephone discovery conference held on April 10, 2017. (Docs.
26, 27, 28).
filed this action on October 2, 2015 (Doc. 1) and an amended
complaint on October 5, 2015. (Doc. 2). The amended complaint
includes the following allegations: Defendants Schadle and
Dunning reported that they found the decedent hanging in his
cell at approximately 2:58 a.m. on October 5, 2013. The
decedent was pronounced dead shortly after an EMS team
arrived at approximately 3:11 a.m. Upon its arrival, the EMS
team found the decedent on the ground handcuffed and with a
sheet tied around his neck. The Brown County coroner, Dr.
Judith Varnau, was summoned and examined decedent at that
time and on October 10, 2013. She confirmed the date of death
but noted a pending investigation into the cause and manner
of death. Between October 5 and November 30, 2013, Dr. Varnau
investigated physical markings on decedent's body as well
as measurements and the configuration of his cell. She
concluded on November 30, 2013, that the cause of death was
not suicide but homicide by strangulation and she signed a
Supplementary Medical Certification stating this was the
official cause of death. Based on these allegations,
plaintiff brings claims under 42 U.S.C. § 1983 for
excessive use of force, denial of medical care, failure to
keep the decedent safe, and failure to preserve evidence.
Plaintiff also brings state law claims for negligence,
assault and battery, wrongful death, spoliation of evidence,
and intentional infliction of emotional distress.
issued a subpoena to Dennis Varnau on March 9, 2017, under
Fed.R.Civ.P. 45 directing him to produce the following
materials: “Any and all documents, statements, reports,
certificates, affidavits, investigations, interviews,
recordings, files, records, evidence, correspondence, emails,
memorandum, communications, [and] photographs, of whatever
kind in whatever form by and between you and [plaintiff's
counsel] John J. Helbling, Benjamin M. Maraan II, and/or
Phillip F. Cameron re: [decedent].” (Doc. 15-1). Varnau
moved to quash the subpoena on the grounds (1) the subpoena
is unduly burdensome because it requests information that is
either a public record or is already in defendants'
possession, and (2) the requested information is protected as
work product of plaintiff's attorneys and “as
privileged communication with Varnau's personal counsel.
. . .” (Doc. 15).
submitted his affidavit in support of the motion. (Doc.
15-2). Varnau alleges in the affidavit that he is a resident
of Brown County who holds a degree in mechanical engineering
and a juris doctor degree, and he is also a certified police
officer and an auxiliary police officer for Sardinia, Ohio.
(Doc. 15-2, Varnau Aff., ¶¶ 1, 3). His wife, Dr.
Judith Varnau, served as the Brown County coroner at the time
of Goldson's death and during the ensuing months.
(Id., ¶¶ 5, 8). During this time period,
Varnau provided “secretarial support services”
for his wife on a volunteer basis which consisted of
assisting her with office paperwork and communications,
including receipt and processing of invoices from neighboring
county coroner officers for autopsies, receiving autopsy
reports for cases originating in and around Brown County and
placing them in decedents' files, and handling funeral
home invoices for transportation of bodies. (Id.,
¶ 6). Varnau was “never involved at any death
scene investigation relating to” Goldson.
(Id., ¶ 7). On or about June 10, 2015,
plaintiff's counsel contacted Varnau and consulted him
“for information and opinions regarding Mr.
Goldson's death in anticipation of litigation” on
behalf of Goldson's estate. (Id., ¶¶
4, 9). Plaintiff's counsel has regularly consulted with
Varnau since June 10, 2015, regarding this litigation because
of his “education, background, training and experience,
” and Varnau's “analysis and opinions”
have been created at the request of plaintiff's counsel
in anticipation of litigation or to assist counsel in
prosecuting plaintiff's case. (Id., ¶¶
9-12). The information Varnau has used to assist counsel was
“obtained through public records, through discovery, or
. . . was provided to [Varnau by plaintiff's counsel] for
[his] analysis and opinion on their behalf.”
(Id., ¶ 10). Based on these allegations, Varnau
contends that all of the materials defendants seek relate to
information Varnau “provided to Plaintiff's counsel
in their pre-suit investigation in anticipation of
litigation” of this case and are clearly protected as
work product, and that additional information considered to
prepare documents and recordings are “public
record[s]” to which defendants have the same access as
Dennis Varnau. (Doc. 15 at 9).
response, defendants argue that Varnau's motion to quash
should be denied because (1) plaintiff lacks standing to
challenge the subpoena issued to Varnau on the ground of
undue burden and the claim of undue burden is unfounded, and
(2) the documents defendants seek are not entitled to
protection as attorney work product. (Doc. 18). Defendants
argue that Varnau has not submitted a privilege log as
required to describe the content of the information Varnau
seeks to withhold; Varnau has a conflict of interest arising
from his involvement in other lawsuits with defendants that
may be impacted by resolution of this case and which
“overrides any potential attorney work product
protection”; and Varnau is in actuality functioning as
an expert witness so that the factual material he has
considered must be disclosed. (Id. at 6). Defendants
further contend that they have a substantial need for the
subpoenaed materials, which they cannot obtain by other
means. (Id. at 7).
Court held an informal discovery conference on April 4, 2017,
and a follow-up conference on April 10, 2017. (Docs. 19, 21).
After the follow-up conference, the Court ordered the parties
to submit briefs on the issues of (1) whether the work
product doctrine applies to Varnau's conversations and
materials, and (2) whether the sequestration of witnesses at
the depositions in this case is warranted. (Doc. 22). In his
brief, Varnau reiterates his position that plaintiff's
counsel consulted him for “information and
opinions” regarding Goldson's death and that since
the time plaintiff filed this lawsuit, he has regularly
worked with plaintiff's counsel “to analyze
information and formulate opinions based on his education,
training and experience in order to assist them in support of
the claims” in this case. (Doc. 24 at 4-5, citing Doc.
24-3, Varnau Aff., ¶¶ 9, 11, 12). Varnau alleges
that “everything arising out of [his] assistance to
Plaintiff's counsel after June 10, 2015”
constitutes “opinion work product” that reflects
“the mental impressions of an attorney.”
(Id. at 10). Varnau also alleges that “the
information that [he considered] in preparing additional
documents, recordings, both audio and video and opinions for
Plaintiff's counsel is either public record that
Defendant already has in its possession or arises out of
documents provided by Defendants to Plaintiffs in discovery
and used by Mr. Varnau in assisting Plaintiff's counsel
in the current litigation.” (Id.).
argue in response that the work product doctrine does not
apply to Varnau's conversations and materials due to
Varnau's alleged conflict of interest, plaintiff's
failure to submit a privilege log, and defendants'
demonstrated need for the information. (Doc. 26 at 6).
Defendants allege that Varnau has a conflict of interest that
arises from his involvement in two defamation lawsuits filed
by defendants and a third case where the Brown County Common
Pleas Court issued an injunction that enjoins the
coroner's office from “any activity whatsoever
concerning the mode, manner and cause of death of Zachary
Goldson.” (Id. at 7, citing Dunning et al
v. Varnau, et al., No. 1:14-cv-00932 (S.D. Ohio 2014);
Dunning et al. v. Varnau et al., No. CV 20170146
(Brown Cnty. C.P. Court); Dunning et al. v. Varnau, No.
CV 20150001 (Brown Cnty. C.P. Court, Sept. 8, 2016).
Defendants allege that Varnau's conflict of interest
precludes him from serving as an expert witness in this case
and claiming work product protection for his materials;
however, plaintiff has tried to sidestep this barrier by
designating Varnau as a “consultant” when in fact
he is a “constructive expert witness” admittedly
retained by plaintiff “to analyze evidence and
formulate opinions.” (Id. at 7-8, citing
Ross v. Am. Red Cross, No. 2:09-CV-905, 2012 WL
2090511, at *1 (S.D. Ohio Jan. 11, 2012), aff'd,
567 F. App'x 296 (6th Cir. 2014); Sells v.
Wamser, 158 F.R.D. 390, 393 (S.D. Ohio 1994); Lippe
v. Bairnco Corp., 288 B.R. 678 (S.D.N.Y. 2003),
aff'd, 99 F.Appx. 274 (2d Cir. 2004)).
Defendants also assert that it was apparent at the time
plaintiff's counsel retained Varnau that he was actually
a fact witness, so there is no reasonable expectation his
communications with counsel would be protected under the work
product doctrine. (Id. at 8, citing Evercare Co.
v. 3M Co., No. 1:08 MC 42 (Doc. 13 -July 10, 2008 Order)
(N.D. Ohio) (McHargh, M.J.)). Defendants allege that
plaintiff's decision to retain Varnau as a
“non-testifying trial consultant . . . is highly
suspect” and plaintiff must bear the consequences of
counsel's ill-advised decision. (Id.).
further allege that the work product doctrine does not shield
Varnau's communications and materials because Varnau has
not submitted a privilege log, without which it is impossible
to determine whether the withheld information or materials
are “facts” that must be disclosed or
“opinions” that may be entitled to protection.
(Id. at 8-9). Defendants also contend they are
entitled to the subpoenaed information because they can
demonstrate both a substantial need for it and an inability
to obtain the equivalent information from another source
without undue hardship. (Id. at 9-10).
also argue that Varnau's “conflict of interest,
improper conduct, and lack of credibility” require his
“sequestration, ” i.e., limiting Varnau's
“participation in this case to providing sworn
testimony.” (Id. at 1).
reply, Varnau disputes the premises defendants rely on in
support of their motion to quash. (Doc. 28). Varnau denies he
is a fact witness, and he also denies he is an expert
witness. (Id. at 6). Further, Varnau alleges that
the information that came out of the investigation he
conducted for plaintiff's counsel has since been provided
to defendants so that there is no need for a privilege log,
and defendants can obtain the information they seek through
other means because it either originated from them or is a
public record. (Id.). Varnau also seeks to
distinguish the Evercare case by alleging that all
information and materials defendants seek relate directly to
Varnau's work with plaintiff's counsel; Varnau has
satisfied his burden to show those matters go directly to
plaintiff's counsel's pre-trial investigation or
prosecution of this lawsuit; there is no need for a privilege
log here because all of the subpoenaed materials have been
produced to defendants, they are already in defendants'
possession, or they are readily accessible public records;
and plaintiff has not retained Varnau as a witness and Varnau
has not generated any reports for plaintiff's counsel.
(Doc. 28 at 6-11).
challenges defendants' sequestration request on the
ground he has done nothing that would require him to be
sequestered. Varnau alleges that an affidavit completed by
Tara Downing in an attempt to support defendants'
sequestration request is not truthful. (Id. at 13).
Varnau also denies that he has a conflict of interest
stemming from his association with the Brown County
coroner's office and that he has been enjoined from
engaging in any activity with respect to Goldson's death.
(Id. at 13-14). Varnau further contends that the
authorities on which ...