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Abington Emerson Capital, LLC v. Landash Corp.

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

November 20, 2019

ABINGTON EMERSON CAPITAL, LLC, Plaintiff,
v.
LANDASH CORPORATION, et al., Defendants.

          Sarah D. Morrison, Judge.

          OPINION AND ORDER

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND

         The 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.”)).

         Now, 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).

         II. STANDARD OF REVIEW

         “Determining 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.” Fed.R.Civ.P. 37(a)(1).

         Here, 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 Fed.R.Civ.P. 26(b)(3)).

         III. ANALYSIS

         As a 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).

         XPO 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.

         A. Attorney-Client Privilege

         Abington 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 ...


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