United States District Court, S.D. Ohio, Eastern Division
D. Morrison, Judge.
OPINION AND ORDER
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Abington Emerson
Capital, LLC's (“Abington”) Motion to Compel
Email Communications between Susan Santo and Defendant Afif
Baltagi or, in the alternative, Request for In
Camera Inspection. (Doc. 294). As for Abington's
request for in camera inspection, XPO withdrew its
objection to this request, (Doc. 313 at 4), and submitted the
documents to the Court on November 5, 2019. Abington's
unopposed request for in camera inspection is
GRANTED, but, for the following reasons,
Abington's Motion to Compel is DENIED.
dispute currently before the Court is about whether Defendant
XPO Logistics (“XPO”) must disclose certain email
communications. But context is necessary here. Previously in
this litigation, the parties disagreed about whether Abington
could depose XPO's former in-house counsel, Susan Santo.
The Court ruled that the deposition could be convened but
with “proper regard for the attorney-client or work
product privileges[.]” (Doc. 255 at 8 (“This
Opinion merely permits Abington to convene Ms. Santo's
deposition on specific nonprivileged topics.”)).
Abington seeks all communications between Ms. Santo and
XPO's former employee, Defendant Afif Baltagi, who
managed one of XPO's warehouse facilities in Houston,
Texas. (Doc. 294). XPO withheld the communications on the
basis of attorney-client privilege or work product
protection. (Doc. 294-1). Roughly 250 emails are at issue,
and they fall into three general categories: (1) email
communications and attachments between Ms. Santo and Mr.
Baltagi; (2) email communications and attachments between Ms.
Santo and other XPO employees with Mr. Baltagi copied; and
(3) unauthorized email communications sent by Mr. Baltagi.
The matter is fully briefed and ripe for review.
(See Docs. 294, 309, 317).
STANDARD OF REVIEW
the proper scope of discovery falls within the broad
discretion of the trial court.” Gruenbaum v. Werner
Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010)
(citing Lewis v. ACB Business Servs., Inc., 135 F.3d
389, 402 (6th Cir. 1998)). Under Rule 26(b) of the Federal
Rules of Civil Procedure, “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Fed.R.Civ.P. 26(b)(1). “On
notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery.”
because XPO asserts privilege, it bears the burden of
establishing the attorney-client privilege or work product
protection. See Cooey v. Strickland, 269 F.R.D. 643,
647-48 (S.D. Ohio 2010). And since this Court's
jurisdiction is based upon diversity of citizenship, Ohio law
governs the Court's analysis of the attorney-client
privilege. See Fed. R. Evid. 501; see also
Jewell v. Holzer, 899 F.2d 1507, 1513 (6th Cir. 1990)
(“In a civil case involving claims based on state law,
the existence of a privilege is to be determined in
accordance with state, not federal law.”). The same is
true for Abington's crime-fraud exception argument.
Safety Today, Inc. v. Roy, No. 2:12- CV-510, 2014 WL
12750617, at *3 (S.D. Ohio May 16, 2014) (“The scope of
the crime-fraud exception is a matter of state law.”).
But federal law governs XPO's claims of attorney work
product. Travelers Cas. & Sur. Co. v. Excess Ins.
Co., 197 F.R.D. 601, 605 (S.D. Ohio 2000) (“As it
relates to defendant's claim of work product doctrine,
which is not an evidentiary privilege but a procedural tool
for managing discovery, federal law governs.”) (citing
starting point, a brief description of the general nature of
the withheld documents is useful. Ms. Santo's sworn
affidavit provides relevant background. In it, she swears
that she “first became involved” with this matter
in May 2016 after her client, XPO, received a letter from
Star Funding accusing XPO's then-employee, Mr. Baltagi,
of improperly releasing Star Funding's tires to Defendant
Jason Adkins' company. (Doc. 309-1, ¶ 5). Ms. Santo
“conducted a factual investigation” of these
allegations “in order to be able to provide legal
advice to [XPO].” (Id.). She continued her
investigation “when counsel for Plaintiff contacted XPO
regarding OTR tires on September 23, 2016.”
(Id., ¶ 6). As part of her investigation, she
corresponded with XPO employees, including Mr. Baltagi, and
probed their knowledge of Star Funding's accusations.
(Id., ¶ 5).
withheld these communications on the basis of the
attorney-client privilege. (See Doc. 294-1). In
addition, it has asserted that all but a handful of the
documents are protected by attorney work product. (See
id.). The Court first will address the narrower doctrine
of attorney-client privilege before turning to XPO's
claims of work product.
challenges XPO's assertion of privilege in three ways:
(1) Mr. Baltagi was a “rogue employee, ” and,
therefore, his communications were not made in the course and
scope of his employment; (2) the communications were made for
a business rather than legal purpose; and (3) the