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Murray Energy Corp. v. Cassidy, Cogan, Chappell and Voegelin, L.C.

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

July 29, 2019

MURRAY ENERGY CORP., et al., Plaintiffs,
v.
CASSIDY, COGAN, CHAPPELL AND VOEGELIN, L.C., et al., Defendants.

          Kimberly A. Jolson Magistrate Judge.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF JUDGE.

         This matter is before the Court on the Objection to the Opinion and Order Denying the Motion to Compel (ECF No. 36) filed by Plaintiffs Murray American Energy, Inc., Murray Energy Corp., the Ohio Valley Coal Company, and Robert E. Murray (collectively "Plaintiffs"). On February 19, 2019, Plaintiffs requested the Magistrate Judge to compel Defendants Cassidy, Cogan, Chappell and Voegelin, L.C., and Patrick Cassidy (collectively "Defendants") to produce privileged communications with the goal of establishing various state law violations. (See ECF No. 23.) On May 24, 2019, the Magistrate Judge denied that request (ECF No. 34) and Plaintiffs timely objected. For the following reasons, the Court OVERRULES Plaintiffs' Objections (ECF No. 36.) and AFFIRMS the Magistrate Judge's well-reasoned Opinion (ECF No. 34).

         I.

         Plaintiff Murray Energy Corporation is the nation's largest privately-owned coal company; Plaintiffs Murray American Energy, Inc. and the Ohio Valley Coal Company are two of its subsidiaries. Mr. Murray, who is also a plaintiff in this case, is the Chairman, President, and Chief Executive Officer of Murray Energy Corporation.

         Defendant Cassidy, Cogan, Chappell and Voegelin, L.C. (the "Cassidy Finn") is a law firm that is partially owned and operated by Defendant Patrick Cassidy ("Mr. Cassidy"), who serves as the Cassidy Firm's president.

         This case involves several non-parties, including: Denise Zombotti ("Ms. Zombotti"), Denise Jackson ("Ms. Jackson"), and Teela Nii ("Ms. Nii"), all of whom previously worked in some capacity for Plaintiffs and who are now clients of Defendants. These women each hired Defendants to represent them in hostile work environment lawsuits filed against Plaintiffs. In 2014, on behalf of Ms. Jackson and Ms. Zombotti, Defendants negotiated confidential settlement agreements with Plaintiffs. In 2016, on behalf of Ms. Nii, Defendants filed suit against Plaintiffs in the Belmont County Court of Common Pleas.

         While representing Ms. Nii, Defendants sent Plaintiffs a letter on December 2, 2016, stating in relevant part: "[f]or my part, I am rather surprised that your clients have not taken any effective action to keep Mr. Murray from sexually harassing his female employees, particularly where they have had knowledge of prior claims made by other women against Mr. Murray (which we think would be admissible as relevant evidence in any claim brought by Ms. Nii)." (Pls.' Am. Compl., Ex. C [ECF No. 13-1].) On March 9, 2017, the Cassidy Firm sent Plaintiffs another letter, this time conveying the intent to discover information "about [Mr. Murray's] long-time treatment of women in the workplace, and maintenance over many years of a hostile work environment based on gender that all of his principal businesses either knew about, or should have known about." (Id., Ex. E.) The March 9th letter also stated that the Cassidy Firm "believe[s] that [Mr. Murray] will be required to testify truthfully about former claims about him ... by former clients of mine (Ms. Jackson and Ms, Zombotti), notwithstanding Mr. Murray having entered into Confidential Settlement Agreements with each of them...." (Id.)

         Based on the content of those letters, Plaintiffs believe that Defendants breached the confidential settlement agreements, particularly the provision to which Ms. Zombotti and Ms. Jackson each separately agreed to "keep all terms of [the] Agreement completely confidential" and further agreed not to "disclose any information concerning her claim or [the] Agreement to any person, including, but not limited to, any past, present, or prospective employee of the Releases...." (Pls.' Am. Compl., Exs. A, B [ECF No. 14].) In Plaintiffs' view, by mentioning Ms. Zombotti and Ms. Jackson's claims against Mr. Murray, Defendants intentionally placed privileged information at issue by using it "offensively in furtherance of Ms. Nii's claims." (Pls.' Mot. to Compel at 5 [ECF No. 15].) Therefore, Plaintiffs filed suit against Defendants in the Belmont County Court of Common Pleas on April 10, 2017. Defendants then removed the case to this Court.

         Plaintiffs allege contract, quasi-contract, and legal malpractice claims, asserting that Defendants breached the terms of the confidential settlement agreements to advance interests of their current client, Ms. Nii. (See Pls.' Am. Compl.) To prosecute these allegations, Plaintiffs served broad discovery requests, which sought Defendants' confidential case files and information regarding the representation of their current and former clients. (See Pls.' Suppl. Br. at 4 [ECF No. 31].) In their supplemental briefs, Plaintiffs present the following "overarching issues" that they aim to discover:

(a) What was the current scope of information Defendants shared with Nii (beyond that currently known);
(b) What did Defendant Cassidy consider before sharing this information (if anything);
(c) Did he discuss (in advance) the disclosure with either Jackson or Zombotti and what was the substance of ...

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