United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.
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).
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
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).
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).
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).
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,
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.”
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.