[Cite as Fiani v. Worldpay, L.L.C., 2024-Ohio-304.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RAMEZ M. FIANI, : APPEAL NO. C-230175 TRIAL NO. A-1902178 Plaintiff-Appellant, :
VS. : O P I N I O N.
WORLDPAY, LLC, :
and :
WORLDPAY, INC., :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 31, 2024
Freking Myers & Reul LLC, Randolph H. Freking and Jon B. Allison, for Plaintiff- Appellant,
Jackson Lewis P.C., Emily J. Gelhaus and David A. Nenni, for Defendants-Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Plaintiff-appellant Ramez Fiani filed a complaint against his former
employers, defendants-appellees Worldpay, LLC, and Worldpay, Inc., (collectively
referred to as “Worldpay”) asserting claims for national-origin discrimination, race
discrimination, age discrimination, and retaliation. A jury returned verdicts in favor
of Worldpay on all counts. Fiani now appeals, arguing in two assignments of error that
the trial court abused its discretion in denying his motion for leave to amend his
complaint and that the trial court erred in overruling his objection to Worldpay’s
untimely and selective waiver of the attorney-client privilege. Finding Fiani’s
arguments to be without merit, we affirm the trial court’s judgment.
I. Factual and Procedural Background
{¶2} In 2010, Fiani was hired by Fifth Third Processing Solutions (“FTPS”),
a predecessor company of Worldpay, as a senior vice president of procurement. Fiani
signed an offer of employment from FTPS. This document stated:
I agree not to commence any action or suit related to my employment
by FTPS:
1. More than six months after the termination of my
employment if the action or suit is related to the termination
of my employment; or
2. More than six months after the event or occurrence on which
my claim is based if the action or suit is based on an event or
occurrence other than the termination of my employment.
I agree to waive any statute of limitations to the contrary.
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{¶3} The procurement function was underneath the legal function in the
company’s structure. Fiani’s direct supervisor was Ned Greene, a chief business
services and legal officer, and also a close friend of Fiani’s. Shortly after his hiring,
Fiani was additionally placed in charge of the company’s real estate and facilities
management function. FTPS subsequently changed its name to Vantiv before merging
with Worldpay in late 2017/early 2018. The merged company operated under
Worldpay’s name. The merger resulted in duplicative positions that had to be
eliminated. It also resulted in the procurement function being placed in the corporate
structure underneath the finance department, rather than the legal department.
{¶4} While Fiani served as the head of procurement for Vantiv at the time of
the merger, a woman named Sarah Willmott filled that same role for Worldpay.
Willmott was new to that role and had previously been an IT project manager.
Following the merger, Greene was responsible for selecting either Fiani or Willmott to
serve as the company’s interim global procurement officer. Greene ultimately elected
to offer that job to Willmott. Despite his belief that Fiani was a “solid performer” and
was qualified for the position, Greene did not believe Fiani could succeed in the role
because Mark Heimbouch, the company’s chief operating officer, did not think Fiani
was the right person for the job and would not accept him.
{¶5} Fiani expressed his frustration with Greene’s selection of Willmott to
Kellie Morton, a senior human resources business partner. During his conversation
with Morton, Fiani made allegations of discrimination against several senior officers
in the company, including Heimbouch and Stephanie Ferris, who at that time was the
company’s chief financial officer.
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{¶6} Fiani, who was Lebanese, told Morton that Heimbouch was a bigot. He
alleged that Heimbouch repeatedly mocked his accent; told him in a meeting not to
speak Arabic and to speak English (when he was, in fact, already speaking English);
mocked him for being nominated to lead Vantiv’s African-American affinity group;
and made joking comments about Fiani’s cousins constructing a parking garage. With
respect to Ferris, he alleged that she had once asked him, “You’re an Arab, right?” and
followed up by asking him if he had a problem with Israel or with Jewish people. On
one occasion, a statue of a camel was left on Fiani’s desk.
{¶7} Although Fiani did not ask her to, Morton reported Fiani’s concerns to
the legal department. Carrie Russell, the company’s general counsel, conducted an
investigation into Fiani’s allegations with the assistance of John Turner, then a
human-resources partner. Russell ultimately determined that there was no support
for an allegation that Fiani was not given the global procurement role for any
discriminatory reason.
{¶8} In the spring of 2018, after it became clear that he would not be given
the global procurement role, Fiani was assigned to work with Royal Cole, who ran the
company’s North American business, on the integration of Vantiv and Worldpay.
Willmott ultimately resigned from the company before actually serving in the global
procurement role. Greene asked Fiani to step in to fill the role on an interim basis, but
Fiani elected to work with Cole instead.
{¶9} Ferris, in her role at that time as chief financial officer, elected to hire
someone to serve as a chief operating officer for the finance organization, rather than
directly hire someone to serve as head of global procurement. This was a broader role
than head of procurement, and Ferris intended for the future chief operating officer to
4 OHIO FIRST DISTRICT COURT OF APPEALS
subsequently hire someone for the global procurement position. Ferris selected a
woman named Joanna Fielding to fill the chief operating officer role. Fielding
ultimately hired an outside contractor, James Berry, to fill the procurement role.
{¶10} Fiani’s assignment with Cole was initially offered for a 12-to-18-month
period, but the integration work was completed much sooner. In November of 2018,
Cole met with Fiani to let him know that the company was terminating his
employment. The official date of Fiani’s termination was January 1, 2019.
{¶11} Fiani filed a complaint against Worldpay on May 3, 2019, asserting
claims for national-origin discrimination, race discrimination, age discrimination, and
retaliation. The complaint contained allegations that Fiani was treated differently than
similarly-situated employees because of his national origin, race, and age, that he was
subject to a hostile work environment, and that his employment was terminated in
violation of R.C. Chapter 4112. It further alleged that he was terminated in retaliation
for his allegations of discrimination.
{¶12} On September 21, 2020, Fiani filed a motion for leave to file an amended
complaint adding a claim for gender discrimination. The motion stated that he had
discovered facts during discovery that would support this additional claim. Fiani’s
proposed gender-discrimination claim alleged that he was discriminated against on
the basis of his gender because the company treated him less favorably by selecting
Sarah Willmott and Joanna Fielding to head procurement and by terminating his
employment in violation of R.C. Chapter 4112. Worldpay filed a memorandum in
opposition to Fiani’s motion to amend, contending that the motion was futile,
untimely, and contradicted facts known and previously testified to by Fiani in a
deposition.
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{¶13} Worldpay filed a motion for summary judgment on September 25,
2020, asserting that all of Fiani’s allegations of discrimination fell outside of the
contractually agreed upon six-month limitations period contained in his signed
acceptance of FTPS’s offer of employment. The motion further argued that the actual
termination of Fiani, which occurred within the applicable six-month limitations
period, was not done with any discriminatory intent or with any retaliatory animus.
Worldpay filed a second motion for summary judgment on February 18, 2021,
reiterating the argument from its first motion about the contractual limitations period
and arguing that Greene’s decision in the spring of 2018 to not give Fiani the global
procurement role was not discriminatory or retaliatory. Fiani filed a memorandum in
opposition to Worldpay’s motions for summary judgment.
{¶14} In September of 2021, the trial court denied both motions for summary
judgment and overruled Fiani’s motion for leave to amend his complaint. A jury trial
was held in February and March of 2022. The jury returned a verdict for Worldpay on
all claims, and Fiani now appeals.
II. Motion for Leave to Amend Complaint
{¶15} In his first assignment of error, Fiani argues that the trial court abused
its discretion by denying his motion for leave to amend his complaint.
{¶16} A trial court’s decision to deny a plaintiff leave to amend a complaint is
reviewed for an abuse of discretion. Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863,
¶ 84 (1st Dist.). “The term ‘abuse of discretion’ implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable.” Garry v. Borger, 1st Dist. Hamilton No.
C-220069, 2023-Ohio-905, ¶ 14, citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559
N.E.2d 1301 (1990).
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{¶17} The amendment of pleadings is governed by Civ.R. 15(A), which
provides that:
A party may amend its pleading once as a matter of course within
twenty-eight days after serving it or, if the pleading is one to which a
responsive pleading is required within twenty-eight days after service of
a responsive pleading or twenty-eight days after service of a motion
under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other cases, a
party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court shall freely give leave when
justice so requires.
{¶18} As the Supreme Court of Ohio has recognized, it is preferable to resolve
cases upon their merits, rather than upon pleading deficiencies. Peterson v. Teodosio,
34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973). “Although the grant or denial of leave
to amend a pleading is discretionary, where it is possible that the plaintiff, by an
amended complaint, may set forth a claim upon which relief can be granted, and it is
tendered timely and in good faith and no reason is apparent or disclosed for denying
leave, the denial of leave to file such amended complaint is an abuse of discretion.” Id.
{¶19} Relevant factors for the trial court to consider when ruling on a motion
to amend include “whether the movant made a prima facie showing of support for the
new matters sought to be pleaded, the timeliness of the motion, and whether the
proposed amendment would prejudice the opposing party.” Maas, 2020-Ohio-5160,
161 N.E.3d 863, at ¶ 85. “A trial court properly refuses to grant leave to amend when
amendment would be futile.” Id.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Fiani’s motion for leave to amend asserted that he learned additional
information during the discovery process that would support a claim for gender
discrimination. The additional, proposed gender-discrimination claim alleged that
Worldpay discriminated against Fiani because of his gender by selecting Sarah
Willmott and Joanna Fielding to head procurement and terminating his employment
in violation of R.C. Chapter 4112.
{¶21} The trial court overruled Fiani’s motion for leave to amend, stating that
the motion was not well-taken. It found that there was no evidence that the motion
was filed in bad faith or for delay, but it provided no further explanation as to the basis
for its ruling. A consideration of the factors set forth above leads us to hold that the
trial court, despite its failure to provide an explanation for its denial of Fiani’s motion,
did not abuse its discretion in so ruling.
{¶22} Fiani made a prima facie showing of support for a claim for wrongful
termination on the basis of gender discrimination. In support of this claim, the
amended complaint alleged that “Defendants discriminated against Plaintiff because
of his gender by, including but not limited to, treating him less favorably by selecting
Sarah Wilmot [sic] and Joanne [sic] Fielding to head Procurement and terminating
Plaintiff’s employment in violation of R.C. Chapter 4112.” The amended complaint
could certainly have gone into greater detail regarding the assertion of gender
discrimination, but the law is well-settled that “a plaintiff is not required to prove his
or her case at the pleading stage.” Fox Consulting Group, Inc. v. Mailing Servs. of
Pittsburgh, Inc., 1st Dist. Hamilton No. C-210250, 2022-Ohio-1215, ¶ 7, quoting York
v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} The record contains no evidence or indication that Worldpay would
have been prejudiced if the motion for leave to amend had been granted. Worldpay
was already on notice to defend against claims for wrongful termination and
discrimination on the basis of race, national origin, and age. And while Worldpay
opposed Fiani’s motion for multiple reasons, it did not assert that it would suffer
prejudice if it had to defend against an additional claim of gender discrimination.
{¶24} We next consider the timeliness of Fiani’s motion for leave to amend.
The complaint was filed on May 3, 2019, and Worldpay’s answer was filed June 7,
2019. The motion for leave to amend the complaint was filed over a year later, on
September 21, 2020. This was well past “twenty-eight days after service” of the answer.
See Civ.R. 15(A). However, the motion was filed during the discovery period, which
was set to be open until January 11, 2021.
{¶25} When considering whether the motion was timely filed, we must take
into account when the motion was filed in relation to when Fiani became aware of the
viability of the additional claim. Fiani alleged in the motion for leave to amend that
“[t]hrough the discovery process Plaintiff has discovered facts that support the
additional claim as reflected in the Amended Complaint.” The motion did not explain
specifically what this additional information was or where and when it was discovered,
but the record shows that the depositions of Worldpay employees Chris Thompson,
Kellie Morton, Stephanie Ferris, Royal Cole, and Mark Heimbouch were taken in
August of 2020, approximately one month before the motion for leave to amend was
filed.
{¶26} However, the only new facts alleged in the amended complaint were that
Fiani had expressed concerns about discrimination on the basis of national origin,
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race, and gender, and that Joanna Fielding was hired to perform the procurement
duties that had previously been performed by Fiani. The record contains evidence that
Fiani was already aware of this information concerning Fielding prior to the
depositions being taken. In his own deposition, taken December 5, 2019, Fiani was
asked about who ultimately filled the procurement role. He answered that Stephanie
Ferris had hired Joanna Fielding to serve as her chief operating officer, and that
procurement would go through Fielding. Fiani further stated that he offered to give
Fielding background information about the job, and that she took him up on the offer.
Given that Fiani was aware before his employment was terminated that Fielding was
hired after Willmott, his motion for leave to amend his complaint to add a claim for
gender discrimination was not timely filed. See McElwee v. Dayton Newspapers, Inc.,
2d Dist. Montgomery No. 19813, 2004-Ohio-171, ¶ 33 (holding that, where plaintiffs
admitted that any new claims were based on facts that been known two years earlier
when the original complaint was filed, the claims could have been included in the
original complaint and there was no justification for the delay).
{¶27} Fiani asserts on appeal that “while [he] may have known that Wilmott
[sic] and Fielding were hired in 2018, not until depositions were conducted, including
the Ferris deposition, did Fiani uncover facts showing that the decisions to hire them
and fire him were unlawfully motivated by his gender.” (Emphasis sic.) But this
allegation cannot be found in his motion for leave to amend or in the amended
complaint itself. Because this argument was not presented to the trial court, we find
that on this record, Fiani’s motion for leave to amend the complaint was not timely
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} But even if the motion had been timely filed, we nonetheless find no
abuse of discretion by the trial court in overruling the motion because the amendment
would have been futile. Fiani’s complaint asserted that he was wrongfully terminated
on the basis of various types of discrimination. Fiani reiterated this point in his
appellate brief, stating that “all of his claims were based on his wrongful termination.”
However, the additional facts allegedly uncovered during discovery and the additional
claim of gender discrimination as set forth in the proposed amended complaint do not
concern or relate to Fiani’s ultimate termination by Cole. Rather, they concern the
failure to promote him to the role of interim head of global procurement. Based on the
absence of evidence tying Fiani’s ultimate termination by Cole to gender
discrimination, Fiani could not have succeeded on a gender-discrimination claim and
the amendment would have been futile.
{¶29} We sympathize with Fiani’s frustration over the trial court’s failure to
provide an explanation for its denial of his motion, particularly where the trial court’s
ruling was issued approximately one year after the motion was filed. But where the
motion was not timely filed and the amendment would have been futile, we find no
abuse of discretion by the trial court in denying the motion for leave to amend.
{¶30} The first assignment of error is accordingly overruled.
III. Attorney-Client Privilege
{¶31} In his second assignment of error, Fiani argues that the trial court erred
in overruling his objection to Worldpay’s untimely and selective waiver of the
attorney-client privilege. He contends that the trial court erred in allowing Worldpay
to use the privilege as both a sword and a shield.
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{¶32} Worldpay asserted the attorney-client privilege throughout the course
of the discovery period. The privilege was asserted to prohibit its employees from
discussing Russell’s investigation into Fiani’s assertions of discrimination concerning
the failure to promote him to the global procurement role. During Russell’s deposition,
Worldpay not only asserted the privilege, but assured Fiani that the privilege would
not be waived at trial. Despite this assurance, Worldpay later decided after the close
of discovery to waive the privilege. Worldpay provided Fiani with Russell’s
investigation report and offered to reopen depositions at Worldpay’s cost. Fiani did
not take Worldpay up on this offer.
{¶33} In its amended pretrial statement, Worldpay discussed its decision to
waive the attorney-client privilege. In relevant part, it explained:
Fiani will present evidence at trial about Greene’s March 2018 decision
and Russell’s March/April 2018 investigation. He also intends to
substantially focus on Worldpay’s assertion of the attorney-client
privilege related to Russell’s investigation to falsely suggest to the jury
and Court that Worldpay is hiding the facts.
In light of this, Worldpay decided to waive the attorney client privilege
that applied to Russell’s investigation so it can respond to Fiani’s
allegations and present all the facts to the Court and the jury.
{¶34} Worldpay’s waiver of the attorney-client privilege occurred in August of
2022. At that time, the trial was scheduled for November of 2022, although the trial
was ultimately continued until February 2023. Upon being made aware of Worldpay’s
intent to waive the privilege and receiving Russell’s report, Fiani did not file a motion
in limine or move to compel Worldpay to produce additional information that it
12 OHIO FIRST DISTRICT COURT OF APPEALS
believed was omitted from the report. Rather, Fiani objected to the waiver of the
privilege for the first time at trial.
{¶35} During opening statements, Fiani’s counsel briefly alluded to Russell’s
investigation. He first referenced Fiani’s conversation with Morton and stated that
Fiani did not intend to make a complaint about the failure to promote him and
Heimbouch’s related bigotry because he feared retaliation. Counsel then stated that “a
couple” weeks after Fiani’s conversation with Morton, Fiani received a call from
Russell, resulting in a meeting where he laid out his concerns regarding Heimbouch
and asked her not to conduct an investigation because he feared retaliation. Counsel
further told the jury “the evidence is going to show that that’s exactly what happened,
retaliation.”
{¶36} Defense counsel, during opening statements, started to reference
Russell’s investigation into Fiani’s allegations of discrimination. Fiani immediately
objected. During a sidebar, Fiani’s counsel explained that Fiani elected not to take
Worldpay up on its offer to reopen depositions because Fiani was concerned that doing
so would delay the trial. Thus, counsel argued that it would be unfair to allow
Worldpay “to introduce evidence as to the matters on attorney-client privilege
throughout litigation.” In response, defense counsel argued that Worldpay offered to
waive privilege when the company realized that Fiani “was going to make a significant
issue about the company asserting attorney-client privilege and about the
investigation.” Counsel explained, “This will be a significant issue in the case as the
plaintiff just explained during their opening, and the defense has to be able to explain
what happened in the investigation.” After hearing arguments from counsel, the trial
13 OHIO FIRST DISTRICT COURT OF APPEALS
court overruled the objection. The court determined that if anything about the
investigation is relevant, then “it is probably going to come in.”
{¶37} Fiani contends that the trial court erred in overruling his objection to
Worldpay’s waiver of the attorney-client privilege. He argues that we should review
the trial court’s decision to allow defendants to waive the attorney-client privilege de
novo. He relies on this court’s holding in Shell v. Drew & Ward Co., L.P.A., 178 Ohio
App.3d 163, 2008-Ohio-4474, 897 N.E.2d 201, ¶ 10 (1st Dist.), quoting Roe v. Planned
Parenthood Southwest Ohio Region, 173 Ohio App.3d 414, 2007-Ohio-4318, 878
N.E.2d 1061, ¶ 18 (1st Dist.), affirmed on other grounds, 122 Ohio St.3d 399, 2009-
Ohio-2973, 912 N.E.2d 61, that “[t]he management of the discovery process is
reviewed under an abuse-of-discretion standard, but questions of privilege, including
the propriety of disclosure, are questions of law and are reviewed de novo.”
{¶38} Worldpay, on the other hand, frames the issue not as a dispute over
privilege, but as a dispute over the propriety of an evidentiary ruling by the trial court.
It accordingly contends that the trial court’s admission of evidence concerning the
investigation should be reviewed for an abuse of discretion. Worldpay relies on both
the well-established law that the admission or exclusion of evidence is within the trial
court’s discretion, State v. Summerlin, 1st Dist. Hamilton No. C-160539, 2017-Ohio-
7625, ¶ 35, and the proposition of law that a trial court’s disposition of discovery issues
must be affirmed absent an abuse of discretion, State ex rel. V Cos. v. Marshall, 81
Ohio St.3d 467, 469, 692 N.E.2d 198 (1998).
{¶39} We agree with Worldpay and hold that an abuse of discretion is the
appropriate standard of review to apply in this situation. Critical to our decision is the
fact that the issue in this case is not whether Russell’s investigation report is subject
14 OHIO FIRST DISTRICT COURT OF APPEALS
to protection under the attorney-client privilege—all parties agree that it is. Rather,
the issue is whether the trial court erred in allowing Worldpay to waive the attorney-
client privilege and, correspondingly, whether it was error to admit Russell’s
investigation report.
{¶40} Total Quality Logistics, LLC v. BBI Logistics LLC, 12th Dist. Clermont
No. CA2021-04-012, 2022-Ohio-1440, is instructive on this point. In Total Quality
Logistics, the trial court held that a party asserting the attorney-client privilege had
waived the right to assert the privilege by making only boiler-plate assertions of
privilege, failing to provide supporting evidence with respect to the assertion of the
privilege, and submitting deficient privilege logs. Id. at ¶ 10. The Twelfth District
applied an abuse-of-discretion standard when reviewing the trial court’s actions. It
held that “[a] trial court has discretion to determine waiver [of privilege] on a case-by-
case basis.” Id. at ¶ 23. We accordingly review the trial court’s overruling of Fiani’s
objection to Worldpay’s waiver of the attorney-client privilege for an abuse of
discretion.
{¶41} Fiani argues that Worldpay used the attorney-client privilege as both a
sword and a shield against him by failing to disclose significant portions of Russell’s
investigation and report. While the asserted proposition of law is correct, namely that
“[t]he attorney-client privilege cannot at once be used as a shield and a sword,” the
record does not support Fiani’s assertion that Worldpay used the attorney-client
privilege in this manner or that it failed to disclose certain documents from Russell’s
investigation. See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127
Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 41, quoting In re Lott, 424 F.3d
15 OHIO FIRST DISTRICT COURT OF APPEALS
446, 454 (6th Cir.2005), quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d
Cir.1991).
{¶42} Fiani alleges that Worldpay failed to disclose Russell’s notes from her
interview with Ferris, as well as details from conversations between Russell and
Greene regarding his decision to give the procurement role to Willmott. Fiani further
contends that the investigation report did not indicate whether John Turner, who
assisted Russell in the investigation, interviewed Heimbouch, and that it did not
contain notes from Turner’s interview with Fiani’s former coworker Anup Nair
regarding whether Nair was subject to discriminatory treatment.
{¶43} Russell testified that it was her practice to type her handwritten notes
in an email to herself and then shred the handwritten notes. Accordingly, any
handwritten notes from Russell’s interview with Ferris would have been shredded, and
the record does not support Fiani’s assertion that Worldpay failed to disclose them.
The same is true of Fiani’s assertion that Russell failed to disclose details about her
conversations with Greene. Russell testified that she did not take notes every time that
she met with Greene.
{¶44} With respect to Fiani’s assertion that Russell’s report did not indicate
whether Turner had interviewed Heimbouch, Russell’s testimony answered this
question in the negative. While Turner did not interview Heimbouch, he did give
Russell his opinion regarding Heimbouch’s general character, stating that he had
never heard Heimbouch treat anyone in a discriminatory manner.
{¶45} Fiani’s remaining allegation is that the report that he was provided did
not contain information about Turner’s interview with Nair. Nair was a former
employee that left Worldpay. After Fiani mentioned Nair’s name to Russell, she asked
16 OHIO FIRST DISTRICT COURT OF APPEALS
Turner to reach out to him. Turner testified at trial that he spoke to Nair “and asked
questions around the allegations in the claim that [Russell] had filled me in on.” He
further testified that he had a debrief about his conversation with Nair with several
Worldpay employees, including Russell and Greene. Fiani’s counsel asked Turner if he
took notes during his conversation with Nair or in his subsequent debrief session with
Russell and Greene. Turner responded, “I don’t remember.” He was then asked if he
was aware if any notes from these conversations still existed, to which he responded,
“I don’t know of any.” Russell testified that Turner reached out to Nair at her request,
but her testimony did not address whether Turner took notes during that
conversation. We accordingly find that the record does not support Fiani’s allegation
that Worldpay failed to include notes from Turner’s interview with Nair in Russell’s
{¶46} On this record, we cannot hold that Worldpay used the attorney-client
privilege as both a sword and a shield by failing to disclose portions of Russell’s
investigation.
{¶47} Fiani urges this court to hold that a party may not invoke the attorney-
client privilege during discovery and “subsequently waiv[e] it at the eleventh-hour.”
We decline to impose such a bright-line rule.
{¶48} While we can foresee circumstances in which it would be inappropriate
to assert the attorney-client privilege during discovery and then ultimately elect to
waive the privilege at a later date, we hold that it was not unreasonable for Worldpay
to do so in this case. Worldpay initially took the position that all of Fiani’s
discrimination claims investigated by Russell were outside of the six-month
limitations period that Fiani contractually agreed to when he signed the offer of
17 OHIO FIRST DISTRICT COURT OF APPEALS
employment from FTPS. Heimbouch’s and Ferris’s allegedly discriminatory actions
occurred in the spring of 2018 or before, and Fiani’s lawsuit was not filed until May of
2019. Worldpay accordingly sought to protect Russell’s investigation report and
asserted the attorney-client privilege. Worldpay filed a motion for summary judgment
based on this same argument. The trial court ultimately denied the motion for
summary judgment in September of 2021. In August of 2022, after learning that Fiani
was going to make a significant issue at trial about the company’s assertion of the
attorney-client privilege, Worldpay elected to waive the privilege because it did not
want a jury to think that it was hiding any information. Worldpay could have certainly
made the decision to waive the privilege sooner. But at the time the waiver was made,
there were still three months remaining before the trial was scheduled (and, as a result
of the trial being continued, the waiver occurred six months before the trial actually
took place).
{¶49} After electing to waive the attorney-client privilege, Worldpay sent Fiani
a letter informing him of its intent to do so. Worldpay also offered to reopen
depositions at its expense. Worldpay again set forth its intention to waive the attorney-
client privilege in its amended pretrial statement. Fiani did not file a motion in limine
to prevent Worldpay from waiving the privilege or from admitting the investigation
report at trial. Nor did he file a motion to compel any parts of the investigation report
that he believed were not disclosed.
{¶50} Under these circumstances, we find no abuse of discretion in the trial
court’s decision to overrule Fiani’s objection to Worldpay’s waiver of the attorney-
client privilege. The second assignment of error is overruled.
18 OHIO FIRST DISTRICT COURT OF APPEALS
IV. Conclusion
{¶51} Having overruled Fiani’s assignments of error, we accordingly affirm
the trial court’s judgment.
Judgment affirmed.
BOCK, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.