United States District Court, S.D. Ohio, Eastern Division
L. Graham Judge.
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
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.
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.).
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).
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
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
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 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).
“[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).
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