United States District Court, S.D. Ohio, Eastern Division
A. Sargus, Jr., Judge
OPINION AND ORDER
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Cheryl &
Co.'s (“Cheryl's”) Motion to Compel
Discovery and to Strike Errata Street. (Doc. 85). For the
reasons below, Plaintiff's Motion to Compel is
DENIED, and Plaintiff's Motion to Strike
Errata Sheet is DENIED without prejudice.
the Court has summarized the allegations in this case.
(See, e.g., Doc. 63 at 1- 3). Broadly speaking,
Cheryl's alleges that Defendant Cheryl Krueger, the
former owner of Cheryl's, founded a new cookie company,
CKE Management, LLC (“CKE”), to compete with
Cheryl's. To perpetrate the scheme, CKE recruited
Cheryl's talent in breach of Cheryl's employees'
noncompete agreements so that CKE could sell lookalike (and
taste-alike) cookies. (See generally Doc. 1).
used the deposition of Benjamin Alesi, CKE's Chief
Financial Officer and 30(b)(6) witness, to learn about the
noncompete agreements. During his deposition, Mr. Alesi
answered questions about CKE's hiring of Cheryl's
then-employee, Defendant Amy Coley-Tonti. (See
generally Doc. 85-1). Specifically, he testified that
CKE's then-counsel, Taft Stettinius & Hollister LLP
(“Taft”) advised CKE about Ms. Coley-Tonti's
noncompete agreement with Cheryl's, (See id. at
44-46), but that he did not know the substance of these
communications, (id., at 48-51). At one point in the
deposition, counsel for Cheryl's asked Mr. Alesi whether
CKE disclosed Taft's legal advice with Ms. Coley-Tonti,
to which he answered, “yes.” (Id.,
46:14-18). Yet, later in the deposition, Mr. Alesi testified
that he did not know whether this disclosure had occurred.
(See id., 48:5-8, 49:12-17).
on Mr. Alesi's testimony, Cheryl's requested
documents relating to Taft's legal advice concerning the
noncompete agreements, asserting that CKE waived any
applicable privilege when it shared privileged communications
with Ms. Coley-Tonti. (Doc. 85-2, ¶ 2). CKE objected on
the basis of the attorney-client privilege or work product
doctrine. (Doc. 85-2 at 4- 5). CKE also supplemented its
privilege log, adding a January 2018 “legal memorandum
re noncompete” drafted by a Taft attorney (“the
Taft Memo”). (Doc. 85-2 at 6). The next day, CKE issued
an errata sheet for Mr. Alesi's testimony, explaining
that Mr. Alesi had misunderstood the questions and did not
know whether CKE disclosed Taft's legal advice to Ms.
Coley-Tonti. (Doc. 85-2 at 7; see also Doc. 85-2 at
13-14). Cheryl's requested that CKE withdraw the errata
sheet. CKE refused, explaining that, “[w]hen read in
full context, it is apparent that Mr. Alesi misunderstood
your initial questions about whether CKE provided any
information to Ms. Tonti that it received from the Taft
firm.” (Id. at 13).
Cheryl's moved to compel the production of documents and
communications exchanged between CKE and Taft concerning
Cheryl's non-compete agreements and moved to strike Mr.
Alesi's errata sheet. (Doc. 85). The matter is briefed
and ripe for resolution. (See Docs. 85, 91, 100).
the proper scope of discovery falls within the broad
discretion of the trial court. See Lewis v. ACD Bus.
Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
Pursuant to Rule 26(b)(1) 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.” Moreover, Rule 37 of the Federal Rules of Civil
Procedure allows for a motion to compel discovery when a
party fails to answer interrogatories submitted under Rule 33
or to provide proper responses to requests for production of
documents under Rule 34. See Fed. R. Civ. P.
this case is before the Court on federal question
jurisdiction, federal law governs questions regarding the
attorney-client privilege or work product protection.
Talismanic Properties, LLC v. Tipp City,
Ohio, 309 F.Supp.3d 488, 493 (S.D. Ohio 2017) (citing
Hancock v. Dodson, 958 F.2d 1367, 1373 (6th
Cir. 1992)). The party withholding discovery bears the burden
to establish privilege or work product. New Phoenix
Sunrise Corp. v. C.I.R., 408 Fed.Appx. 908, 918 (6th
Cir. 2010). Information is protected by the attorney-client
(1) where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8), unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir.
1998). “The work-product doctrine protects an
attorney's trial preparation materials from discovery to
preserve the integrity of the adversarial process.
Talismanic Properties, LLC, 309 F.Supp.3d at 493.
Rule 502 of the Federal Rules of Evidence governs waiver of
privilege. Generally, federal courts in this Circuit require
the proponent of the privilege to carry the burden of showing
nonwaiver as an element of attorney-client privilege. See
In re VisionAmerica, Inc. Sec. Litig., No. 02-MC-033
D/V, 2002 WL 31870559, at *1-2 (W.D. Tenn. Dec. 18, 2002)
(collecting cases and noting that the Sixth Circuit has
favorably cited cases holding that the party claiming
privilege must also show nonwaiver). Some district courts,
however, have adopted a burden-shifting approach to
waiver. See, e.g., Burkhead & Scott, Inc. v.
City of Hopkinsville, No. 5:12-CV-198-GNS, 2014 WL
7335173, at *1 (W.D. Ky. Dec. 19, 2014) (applying
burden-shifting approach and noting that, “[p]roving
privilege has not been waived would require proving a
negative”); Shumaker, Loop & Kendrick, LLP v.
Zaremba, 403 B.R. 480, 484 (N.D. Ohio 2009) (holding
that once the proponent of the privilege establishes
privilege, the burden shifts to the objecting party to
“present sufficient evidence upon which a reasonable
person may find that the privilege has been waived, ”
and then back to the privilege-holder to “disprove each
demonstrated claim of waiver by a preponderance of the
deciding whether to apply waiver, “[c]ourts examine
whether there has been disclosure of a significant part of a
privileged communication to determine if the privilege, in
fact, has been waived.” Yarberry v. Gregg
Appliances, Inc., No. 1:12-CV-611, 2013 WL 4476681, at
*3 (S.D. Ohio Aug. 19, 2013) (quotation marks and citations
omitted). If the court concludes that privilege has been
waived, it then must determine the scope of that waiver.
begin, the Court notes that Cheryl's does not challenge
CKE's claim of attorney-client privilege. Rather, it
asserts that CKE waived the privilege. (Doc. 85 at 12-13). It
is unclear, however, whether Cheryl's is arguing that CKE
waived privilege when it purportedly disclosed privileged
communications to Ms. Coley-Tonti, or, alternatively, that
Mr. Alesi waived privilege on behalf of CKE when he testified
about privileged communications. (See, e.g., Doc. 85
at 12 (asserting third-party waiver); Doc. 85-2 (asserting,
in document request, “that CKE waived any privilege
that may have applied . . . when CKE's duly authorized
representative, Benjamin Alesi, testified that [Taft] and CKE
communicated about Ms. Tonti's noncompete agreement, and
that CKE relayed what [Taft] told [ ] CKE to Ms.
Tonti”)). The Court addresses both assertions.
to the extent that Cheryl's argues that CKE waived
privilege when it disclosed Taft's communications to Ms.
Coley-Tonti, the Court notes one critical problem: there is
nothing decisive on the record establishing that such
relies on the following testimony to assert waiver:
Q. Without revealing any details, did Taft and CKE
communicate about Ms. Tonti's noncompete?
Mr. Mead: You can say yes or ...