Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2018 CV 00072.
Jeffrey J. Moyle and Christopher James Lalak, (For
O'Connor and Brian D. Sullivan, Reminger Co., L.P.A.,
Defendants-appellants, The Technology House, Ltd. and Bud S.
Gear, appeal the Portage County Court of Common Pleas'
October 11, 2018 Order Granting Plaintiffs Motion to Compel.
For the following reasons, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
On January 23, 2018, plaintiff-appellee, Brandy Smith, filed
a Complaint in the Portage County Court of Common Pleas,
against Technology House and Gear, and, on April 9, 2018, a
First Amended Complaint raising claims of Sexual Harassment
(Count I), Race Discrimination (Count II), and Retaliation
(Count III) pursuant to R.C. Chapter 4112.
On April 20, 2018, Technology House and Gear filed their
Answer to the First Amended Complaint.
On July 30, 2018, Smith filed a Motion to Compel, seeking an
order to compel Technology House and Gear to produce the
following: "[a] recording of Defendants'
counsel's interview of Plaintiff regarding her claims of
harassment and discrimination"; "[recordings of
interviews taken by Defendants' counsel with
Plaintiff's non supervisory co-workers";
"[documents related to the interview of Plaintiff and
the interviews of her co-workers, including any notes taken
in connection with [the] same"; "corrected
discovery responses to identify Defendants' counsel as
[sic] participants in Defendants' investigation of
Plaintiff's claims"; and "[n]et worth regarding
Defendants so that punitive damages information may be
calculated in accordance with R.C. § 2315.21."
In support of the Motion, an affidavit sworn to by Smith was
submitted to the court, which stated in relevant part:
3. While I was working at Defendant Technology House,
Defendant Bud Gear approached me and asked me to "have
sex in the back," asked me if he could grab my breasts,
and would frequently tell me that I was "juicy" and
that I "had a nice ass."
4. On October 30, 2018, I reported Mr. Gear's
inappropriate behavior to Nichole Gear (Mr. Gear's
daughter), who served as Technology House's Human
5. On October 31, 2018, Ms. Gear approached me to inform me
that a meeting would be conducted regarding my complaints.
6. Ms. Gear escorted me to the meeting room. Defendants'
counsel Adrian Thompson was present, as was Technology House
employee Tracy Brent (who is also Mr. Gear's daughter).
7. I excused myself to contact my attorney.
8. I returned to the meeting and informed Mr. Thompson that I
was represented by the law firm of Nilges Draher LLC.
9. Mr. Thompson continued questioning me after I informed him
I was represented.
10. I believe the interview lasted for approximately one hour
on the morning of October 31, 2017, ending at approximately
11. Mr. Thompson interviewed other non-supervisory employees
in connection with the investigation of my complaints, and
that Mr. Thompson recorded these conversations as well.
12. I have not been provided with a copy of the recordings of
On September 17, 2018, Technology House and Gear filed a
Brief in Opposition to Plaintiffs Motion to Compel and Motion
for Protective Order. In support of the Brief and Motion, an
affidavit sworn to by Nichole Gear was submitted to the
court, which stated in relevant part:
4. On 10/30/17, Plaintiff Brandy Smith made a complaint to
The Technology House alleging that she had experienced sexual
5. On 10/30/17, on behalf of The Technology House, I retained
outside counsel, attorney Adrian D. Thompson of the law firm
of Taft Stettinius & Hollister, LLP, with respect to the
claims made by Plaintiff Brandy Smith that ...