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Erickson v. Hocking Technical College

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

March 27, 2018

RON ERICKSON, Plaintiff,
v.
HOCKING TECHNICAL COLLEGE, et al., Defendants.

          Edmund A. Sargus, Jr. Chief Judge.

          OPINION AND ORDER

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         This matter came before the Court for a telephonic discovery conference on March 12, 2018. (See ECF No. 23.) During that conference, the parties informed the Court that they disputed whether discussions during certain meetings Nicki Dioguardi (Defendant Hocking Technical College's former General Counsel, Human Resources Director, and Vice President of Risk Management) attended are protected by the attorney-client privilege. Plaintiff, Ron Erickson (the former President of Defendant Hocking Technical College), seeks to depose Ms. Dioguardi regarding these discussions, but Defendants object, asserting that the discussions are protected by the attorney-client privilege. Subsequent to that conference, the parties conducted limited discovery relating to the capacity in which Ms. Dioguardi was operating during the meetings at issue. The parties then submitted letter briefs in camera. This matter is now before the Court upon the parties' letter briefs and supporting documentation. For the reasons that follow, the Court finds that the at-issue communications are not protected by the attorney-client privilege. Accordingly, Plaintiff's request for an order compelling Ms. Dioguardi's testimony regarding the discussions during these meetings is GRANTED.

         I.

         The attorney-client privilege is recognized as the oldest privilege relating to confidential communications. Upjohn v. United States, 449 U.S. 383, 389 (1981). Its purpose is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. In Upjohn, the United States Supreme Court explored the contours of the attorney-client privilege as it relates to corporate employees. 449 U.S. at 386-97. In rejecting the “control group test, ” the Supreme Court emphasized that “the privilege exists to protect not only the giving of legal advice to those who can act on it but also the giving of information to the lawyer to enable him [or her] to give sound and informed advice.” Id. at 390. As the Supreme Court recognized, “[t]he first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.” Id. at 390-91. In light of Upjohn, “it is now well settled that private corporations and other organizations may constitute clients for purposes of the attorney-client privilege.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir.), cert. denied, 525 U.S. 820 (1998).

         The Sixth Circuit Court of Appeals articulated the following test to determine whether a communication is privileged: “(1) where legal advice of any kind is sought (2) from a professional legal adviser in his [or her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his [or her] insistence permanently protected (7) from disclosure by himself [or herself] or by the legal advisor, (8) unless the protection is waived.” Reed, 134 F.3d at 355-56 (citing Fausek v. White, 965 F.2d 126, 129 (6th Cir.), cert. denied sub nom. Selox, Inc. v. Fausek, 506 U.S. 1034 (1992)).

         In addition, “the mere fact that in-house counsel is present at a meeting does not shield otherwise unprivileged communications from disclosure.” Neuder v. Battelle Pac. Nw. Nat'l Lab., 194 F.R.D. 289, 293 (D.D.C. 2000). Rather, the attorney-client privilege “applies only to communications made to an attorney in his capacity as legal advisor.” Id. at 292. “Where business and legal advice are intertwined, the legal advice must predominate for the communication to be protected.” Id. at 292. In determining whether communications made in counsel's presence are privileged, courts have considered whether counsel serves dual roles for the corporation. Naik v. Boehringer-Ingelheim Pharm., Inc., No. 07-c-3500, 2008 WL 4866015, at *2 (N.D. Ill. June 19, 2008) (concluding that communications were not privileged, partly because “there is no suggestion that BIPI's in-house counsel was serving on a committee charged with considering employment issues”).

         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). Simply asserting that information is privileged “is insufficient to meet the burden.” In re Trans-Indus., Inc., No. 1-10 MC 24, 2011 WL 1130410, at *4 (N.D. Ohio Mar. 28, 2011). Rule 26 of the Federal Rules of Civil Procedure requires a party who seeks to withhold otherwise discoverable information on the basis of privilege to assert a claim of privilege and “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do 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)(A); see also Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio 2010) (citing In re Search Warrant Executed at Law Offices of Stephen Garea, No. 97-4112, 1999 WL 137499 (6th Cir. Mar. 5, 1999) (“The privilege log must be detailed enough to prove that the communications in question were in fact confidential communications relating to legal advice.”).

         II.

         In this case, Plaintiff seeks to depose Ms. Dioguardi regarding discussions during a September 12, 2014 meeting and also six executive sessions. The Court considers each in turn.

         A. September 12, 2014 Meeting

         Plaintiff first seeks to depose Ms. Dioguardi regarding discussions during a September 12, 2014 meeting between Plaintiff, Ms. Dioguardi, Andy Stone, and Keith Taulbee. Messrs. Stone and Taulbee serve on Defendant Hocking Technical College's Board of Trustees. Plaintiff represents that he called the meeting in order to “discuss [Gina] Fetty's employment, not for legal advice.” (Pl.'s In Camera Br. 6 (citing Erickson Decl. Ex. 3 at ¶ 5).)

         Defendants contend that the attorney-client privilege attaches to that meeting because “Plaintiff invited Dioguardi [to the meeting] for the purpose of gathering or soliciting legal advice for the college.” (Defs.' In Camera Br. 8-9.) In her Declaration, Ms. Dioguardi states that Plaintiff “told [her] that the purpose of the meeting was to share his decision to terminate Chief Financial Officer Gina Fetty.” (Dioguardi Decl. ¶ 6.) Defendants point out that both Ms. Dioguardi and Mr. Taulbee believe that Plaintiff invited Ms. Dioguardi to the meeting not as a human resources matter, but “to attend and gather information so that she could advise the board concerning the legal issues resulting from the termination decision.” (Defs.' In Camera Br. 8-9 (citing Dioguardi Decl. at ¶ 7; Taulbee Decl. at ¶ 4.) Defendants further submit that an email Plaintiff sent on September 15, 2014, that he marked “Attorney-Client Privileged Information, ” (Id. at Ex. 5), serves as additional evidence showing that Plaintiff intended the communications during the September 12, 2014 meeting to be subject to the attorney-client privilege. (Id. at 5.)

         The Court finds that Defendants have failed to satisfy their burden to demonstrate the existence of the attorney-client privilege with respect to the September 12, 2014 meeting. In support of their arguments, Defendants rely upon Alomari v. Ohio Department of Public Safety, No. 2:11-cv-00613, 2013 WL 4499478 (S.D. Ohio Aug. 21, 2013). The present case is distinguishable from Alomari. In Alomari, the record contained evidence reflecting that the plaintiff was aware of the purposes for which counsel was present. Id. at *3 (noting that “Plaintiff's testimony indicates that he was sufficiently aware that the purpose of the meeting was to provide information to counsel”). Here, in contrast, the record reflects that Plaintiff called the meeting to “discuss Fetty's employment, not for legal advice.” (Pl.'s In Camera Br. 6 (citing Erickson Decl. Ex. 3 at ¶ 5).) Consistently, Ms. Dioguardi states that Plaintiff “told [her] that the purpose of the meeting was to share his decision to terminate Chief Financial Officer Gina Fetty.” (Dioguardi Decl. ¶ 6.) Significantly, Ms. Dioguardi does not indicate that Plaintiff asked her to attend in her capacity as a legal advisor rather than in her capacity as Human Resources Director or Vice President of Risk Management. Nor does Ms. Dioguardi state that she was asked to provide legal advice; to the contrary, she states that she “did not speak and no one asked [her] any questions.”[1] (Id. at ¶ 7.) That Ms. Dioguardi subjectively believed that she was at the meeting in her capacity as counsel to gather information is insufficient to confer the privilege. See United States ex rel. Parikh v. Premera Blue Cross, No. C01-476P, 2006 WL 3733783, at *4, 7-8 (W.D. Wash. Dec. 15, 2006) (attorney's declaration that he attended meetings as representative of legal department did not resolve attorney-client privilege question when evidence did not show that other employees in attendance understood him to be acting in legal role). See also Reed, 134 F.3d at 355 (providing that the first element of ...


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