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Bard v. Brown County

United States District Court, S.D. Ohio, Western Division

May 26, 2017

ASHLEY BARD, individually and as the administrator for the Estate of Zachary Ryan Goldson, Plaintiff,
Brown County, et al., Defendants.

          Dlott, J., Litkovitz, M.J.


          Karen L. Litkovitz United States Magistrate Judge

         Plaintiff 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).

         I. Background

         Plaintiff 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.

         Defendants 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).

         Varnau 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).

         In 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).

         The 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.).

         Defendants 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)[1]; 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.).

         Defendants 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).

         Defendants 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).

         In 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).

         Varnau 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 ...

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