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DeCrane v. Eckart

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

July 17, 2019

SEAN DeCRANE, Plaintiff,
EDWARD J. ECKART, et al., Defendants.



         This matter comes before the Court upon Defendants' Motion (ECF DKT #43) to Disqualify the Chandra Law Firm LLC and to Suppress the Declarations the Firm Improperly Obtained. The Motion was referred to the Magistrate Judge for disposition. The Magistrate Judge denied the Motion to Disqualify and to Suppress without prejudice. (ECF DKT #85). Defendants filed timely Objections to the Magistrate Judge's Order. (ECF DKT #95).

         Upon consideration of the objections, briefs and applicable law, the Court found that an evidentiary hearing was necessary. The hearing was held on April 4, 2019 and concluded on April 8, 2019.

         Following review of the hearing transcript and the post-hearing briefs, the Court finds that disqualification of the Chandra Law Firm LLC is not warranted; the declaration of former Chief Patrick Kelly obtained by the Chandra Firm will not be suppressed and the Magistrate Judge's ruling (ECF DKT #85) is upheld.

         I. BACKGROUND

         Plaintiff is a retired City of Cleveland Division of Fire Battalion Chief. He alleges that Assistant Safety Director Edward Eckart, along with James Votypka and Christopher Chumita, repeatedly retaliated against him based on the mistaken belief that Plaintiff disclosed to a reporter that a previous Fire Chief lacked the required continuing education to maintain his professional certification. Alleged acts of retaliation by Defendants include: repeated failures to promote Plaintiff; seizing the Fire Training Academy's records while Plaintiff served as Director of Training; making false allegations against Plaintiff about deficient record-keeping; trying to have Plaintiff criminally prosecuted; concocting false administrative charges against Plaintiff; delaying a state audit that would have cleared Plaintiff; failing to fully or timely respond to Plaintiff's public records request; relaying false information to the media; ignoring Plaintiff's emails and refusing to meet with him; trying to outsource training activities; and trying to damage Plaintiff's reputation and career.

         As part of the preparation of Plaintiff's case, Plaintiff's counsel, Chandra Law Firm LLC, elected to conduct witness interviews with current and former City of Cleveland employees. Plaintiff's counsel directed a summer law clerk, Brian Bardwell, to conduct the interviews and record them with the interviewee's permission. On September 13, 2017, Plaintiff produced six signed declarations of current and former fire fighters who had been interviewed.

         In a separate Order, the Court required Plaintiff to turn over the audio recordings made of the interviews of the City's current and former employees on or before February 5, 2019, but allowed Plaintiff's counsel to delete or redact Brian Bardwell's annotations on the recordings prior to disclosure. (ECF DKT #106).

         In their Motion to Disqualify, Defendants charge that the Chandra Law Firm violated the Ohio Rules of Professional Conduct by its improper contacts with current and former City employees. In addition, Bardwell, now employed with the Chandra Law Firm, previously interned with the City Department of Law - Public Records Section; and thus, was privy to the City of Cleveland's confidential information, attorney-client communications and attorney work-product.

         Defendants provided the Declaration of Kimberly Roberson, the Public Records Administrator for the City of Cleveland (ECF DKT #64-14), stating that Bardwell interned in the City's Public Records Section of the Department of Law during the summer of 2016. Bardwell was assigned to review 2015 public records requests and determine whether requests were open or closed and the response status. (Id. at ¶ 4). Bardwell was given access to the City's Public Records Log which includes attorney opinions and communications regarding the request status and whether the City is obligated to respond. During his internship tenure, Bardwell was “privy to confidential information, including, but not limited to, how long it typically takes the City to respond to public records requests, the Department of Law's involvement with the requests, and the manner in which the City processes requests.” (Id. at ¶ 9). In addition, at the time Bardwell interned for the City, Plaintiff's 2015 public records request was open and included in the Log Bardwell accessed and reviewed. (Id. at ¶ 8).

         Defendant City of Cleveland took measures to protect its confidential and privileged information and required Bardwell to execute a Confidentiality Agreement. (ECF DKT #43-1, Exhibit 12).

         Defendants add that on August 19, 2016, Bardwell drafted a legal memorandum for the City regarding the timeliness of public records responses. (Redacted copy attached as Exhibit 2 to ECF DKT #95). Defendants point out that Plaintiff's Complaint alleges, in part, that Defendants retaliated against him for engaging in protected conduct by “failing to fully or timely respond to a public-records request for records that tend to support [his] assertions.” (Second Amended Complaint, ECF DKT #46 at ¶ 376n.). That allegation has recently been removed by amendment. (Third Amended Complaint, ECF DKT #120).

         Plaintiff provided the Declaration of Brian Bardwell (ECF DKT#62-6), stating that he was a volunteer for the City of Cleveland Department of Law in the Division of Public Records from July 5, 2016 through August 19, 2016. He stated that he was assigned to review records requests from 2014 and earlier. (Id. at ¶ 9). According to Bardwell, the City granted him access to the database without ever suggesting it was confidential. Although the database includes a field labeled “notes” or “comments, ” he “can recall no instances in which the database contained anyone's opinion about a request or an assessment of ‘whether the City is legally obligated to respond to particular requests.'” (Id. at ¶ 10e). He signed a confidentiality agreement, but it included no provision that the database was confidential. (Id. at ¶ 12). In ¶ 3 of his Declaration, Bardwell states:

I heard and learned absolutely nothing about or substantially related to the DeCrane matter in the 45 days I was a 2016 Cleveland summer law clerk, including DeCrane's public-records request. Accordingly, I did not personally and substantially participate in the matter. I have disclosed absolutely no confidential information about the matter. I have absolutely no confidential information about the matter that I could disclose.”

         Defendants also challenge Bardwell's interview with former Chief Patrick Kelly. They contend that Bardwell's instructions about attorney-client privilege and regarding the adverse litigation positions of Kelly and DeCrane violated the Ohio Rules of Professional Conduct.

         Public ...

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