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Smith v. The Technology House, Ltd.

Court of Appeals of Ohio, Eleventh District, Portage

June 28, 2019

BRANDY SMITH, Plaintiff-Appellee,
v.
THE TECHNOLOGY HOUSE, LTD., et al., Defendants-Appellants.

          Civil Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV 00072.

          Jeffrey J. Moyle and Christopher James Lalak, (For Plaintiff-Appellee).

          James O'Connor and Brian D. Sullivan, Reminger Co., L.P.A., (For Defendants-Appellants).

          OPINION

          MATT LYNCH, J.

         {¶1} 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 opinion.

         {¶2} 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.

         {¶3} On April 20, 2018, Technology House and Gear filed their Answer to the First Amended Complaint.

         {¶4} 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."

         {¶5} 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 Resources Manager.
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 10 a.m.
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 those interviews.

         {¶6} 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 harassment.
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 ...

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