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Cox v. Franklin County Board of Commissioners

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

December 10, 2019

JEFFERY COX, Plaintiff,

          James L. Graham Judge.



         This matter is before the Court on a discovery dispute between Plaintiff and a third party, the Ohio Environmental Protection Agency (the “Ohio EPA”). In response to a third-party subpoena, the Ohio EPA withheld a limited number of related documents (the “Penalty Calculation”) from Plaintiff, and Plaintiff now seeks to compel their production. For the reasons that follow, the Ohio EPA shall produce the Penalty Calculation to Plaintiff on or before December 17, 2019.

         I. BACKGROUND

         The following background is taken from the allegations in Plaintiff's Complaint: Plaintiff is a resident of Franklin County. (Doc. 1, ¶ 20). After moving into his home in 2016, he observed that “noxious sewage odors and gases frequently and without warning are emitted from the curb inlets connected to the storm sewer” near his home. (Id.). Defendant Franklin County Board of Commissioners is a statutory subdivision of the State and “is the authority to establish and manage a system of sewers, including storm water sewers, under RC Chapter 6117, in the unincorporated areas of Franklin County.” (Id., ¶ 29). “Under this authority, Franklin County owns and operates” the storm sewer at issue, MS4. (Id.).

         Through investigation, Plaintiff determined that “thousands of illicit discharges to the MS4 are discharging various pollutants into the MS4.” (Id., ¶ 22). “The largest sources of illicit discharges from the MS4 are home sewage treatment systems (HSTSs), such as aerators.” (Id., ¶ 66). “All of these discharges violate, ” among other things, the Clean Water Act. (Id., ¶ 67).

         Plaintiff presented the results of his investigation to Defendant and the Ohio EPA. (Id., ¶ 2). Defendant subsequently sued the Ohio EPA in state court (the “State Court Action”), and those government entities entered into a consent decree, which Plaintiff maintains is inadequate. (Id., ¶ 3). Plaintiff filed the instant action to remedy those alleged inadequacies.

         During discovery, the Ohio EPA identified one of its employees, Larry Reeder, as an individual “who would have information regarding the de minimis civil penalty included by the Ohio EPA and Defendant in [their] proposed consent decree.” (Doc. 40 at 1-2). Prior to Mr. Reeder's deposition, Plaintiff served the Ohio EPA with a third-party subpoena requesting documents regarding any evaluation or calculation of a civil penalty to be applied to Defendant. (See Doc. 40-2 at 5-6). At the deposition, the Ohio EPA informed Plaintiff that it was withholding Mr. Reeder's penalty calculation (the “Penalty Calculation”) as privileged, and Plaintiff contested that assertion of privilege. (Doc. 40-1, 18:23-19:11). Plaintiff and the Ohio EPA were unable to resolve their dispute through the meet and conferral process, and the Court ordered them to submit position statements setting out their respective arguments. (Doc. 38). They have now submitted their position statements, and their dispute is ripe for resolution.


         “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 Bus. 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).

         And, “[o]n 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). “Once the party requesting discovery establishes relevance, ” the party invoking the protections of the work-product doctrine, “has the burden of showing that the material was ‘prepared in anticipation of litigation or for trial.'” In re Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006) (quoting Toledo Edison Co. v. G.A. Tech., Inc., 847 F.2d 335, 339 (6th Cir. 1988)). “If that burden is not met, the court's inquiry ends and the documents must be produced.” Powerhouse Licensing, 441 F.3d at 473 (citing Toledo Edison, 847 F.2d at 339).


         The Ohio EPA presents two arguments in opposition to Plaintiff's request for the Penalty Calculation. First, it argues that the Penalty Calculation is not relevant to the issues in this case. (Doc. 39 at 3-4). Second, the Ohio EPA asserts that the work-product doctrine protects the Penalty Calculation from disclosure because it “was generated solely at the request of and for an attorney within the Ohio EPA.” (Id. at 1; see also Id. at 1-2).

         A. ...

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