Meyers, Roman, Friedberg & Lewis, L.P.A. v. Malm

916 N.E.2d 832, 183 Ohio App. 3d 195
CourtOhio Court of Appeals
DecidedJune 4, 2009
DocketNo. 90949
StatusPublished
Cited by4 cases

This text of 916 N.E.2d 832 (Meyers, Roman, Friedberg & Lewis, L.P.A. v. Malm) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyers, Roman, Friedberg & Lewis, L.P.A. v. Malm, 916 N.E.2d 832, 183 Ohio App. 3d 195 (Ohio Ct. App. 2009).

Opinion

Mary J. Boyle, Judge.

{¶ 1} Defendants-appellants, John A. Malm Jr. and his company, J. Artist Management, Inc. (collectively “Malm”), appeal from an interlocutory order granting a motion to compel filed by plaintiffs-appellees, Meyers, Roman, Fried-berg & Lewis, L.P.A., and its employees (attorneys who represented Malm), Alan N. Hirth, Debra J. Horn, and Kennee B. Switzer (collectively “MRFL”). Finding no merit to the appeal, we affirm.

Background and Procedural History

{¶ 2} MRFL represented Malm in an action brought by Trent Reznor (of the band Nine Inch Nails) in the United States District Court, Southern District of New York.1 Malm had been Reznor’s personal manager for many years. Reznor filed suit, claiming that Malm had misappropriated money and ownership rights regarding the trademark name “NIN.” The case proceeded to trial in May 2005, after which Reznor obtained a jury verdict against Malm for nearly $5 million.

{¶ 3} In July 2005, MRFL brought suit against Malm for breach of contract and unjust enrichment, seeking $608,703 in unpaid legal fees, plus pre- and postjudgment interest. Malm responded and brought a counterclaim for breach of contract and legal malpractice.

{¶ 4} On December 3, 2007, MRFL subpoenaed information from the law firm Fay Sharpe, L.L.P. Fay Sharpe had been Malm’s patent/trademark counsel on intellectual-property matters, including matters involving Reznor and the NIN trademark. In the subpoena, MRFL requested the following:

{¶ 5} “Any and all communications of any kind between Federal District Judge Jed Rakoff and [Fay Sharpe attorneys], or anyone at the law firm of Fay, Sharpe, Fagan, Minnich & McKee (or any former name or current name of such law firm) during the year 2005.”

{¶ 6} Malm instructed Fay Sharpe not to produce documents based upon attorney-client privilege. On December 31, 2007, MRFL moved to compel Fay Sharpe to produce the information it had subpoenaed.

{¶ 7} The trial court granted MRFL’s motion to compel, finding that Malm had voluntarily waived the attorney-client privilege, agreeing with United States District Court Judge Jed Raykoff of the Southern District of New York that Malm’s testimony that he knowingly made false statements on a trademark application on the advice of counsel constituted “total, complete, and absolute waivers of the attorney-client privilege.” The trial court further found that Malm [198]*198voluntarily waived the attorney-client privilege on two other occasions: (1) when he responded to Judge Raykoff s questions in the Reznor litigation and (2) during his deposition in the current case.

{¶ 8} It is from this judgment that Malm filed notice of an interlocutory appeal,2 raising four assignments of error for our review:

{¶ 9} “[1.] The trial court erred when it ruled defendant/appellant John A. Malm, Jr. waived the attorney-client privilege between Malm and Fay Sharpe, LLP when Malm testified at trial under cross-examination before the U.S. District Court for the Southern District of New York that he signed a trademark application on the advice of counsel.

{¶ 10} “[2.] The trial court erred when it ruled defendant/appellant John A. Malm, Jr. waived the attorney-client privilege between Malm and Fay Sharpe, LLP when he answered questions posed to him by a U.S. District Court Judge during trial on the record while outside the presence of the jury.

{¶ 11} “[3.] The trial court erred when it ruled defendant/appellant John A. Malm, Jr. waived the attorney-client privilege between Malm and Fay Sharpe, LLP based on Malm’s discovery deposition testimony on cross-examination in the instant matter.

{¶ 12} “[4.] The trial court erred when it found defendant/appellant John A. Malm, Jr. waived the attorney-client privilege between Malm and Fay Sharpe, LLP based, in part, on Malm’s deposition testimony on cross-examination when Malm’s deposition testimony was never properly before the court.”

Standard of Review

{¶ 13} A trial court is vested with wide discretion in rendering decisions on discovery matters. Dandrew v. Silver, 8th Dist. No. 86089, 2005-Ohio-6355, 2005 WL 3219730, ¶ 35, citing Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 592, 664 N.E.2d 1272. Thus, the applicable standard for appellate court review of a disputed trial court’s handling of discovery matters is whether the trial court abused its discretion. An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

Voluntary Waiver of Attorney-Client Privilege

{¶ 14} In his first three assignments of error, Malm argues that the trial court erred when it found that he voluntarily waived the attorney-client privilege on [199]*199three separate occasions: (1) when he testified under cross-examination in the Reznor litigation, (2) when he responded to Judge Raykoff s questioning in the Reznor litigation, and (3) when he testified on cross-examination during his deposition in the current case. Because Malm’s arguments in all three instances are the same, we will address these assignments of error together.

{¶ 15} Malm maintains that on all three occasions, his testimony was involuntary. He argues that his cross-examination testimony in the Reznor litigation, as well as his deposition testimony in this case, was not voluntary. He further argues that he had no choice but to answer Judge Raykoffs questions in the Reznor litigation. He therefore contends that because his testimony on all three occasions could not have been considered voluntary, it did not act as a waiver of privilege. We disagree.

A. Applicable Law

{¶ 16} In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, the Ohio Supreme Court held that “R.C. 2317.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived.” Id. at syllabus, following State v. McDermott (1995), 72 Ohio St.3d 570, 651 N.E.2d 985.

{¶ 17} R.C. 2317.02 provides: “The following persons shall not testify in certain respects: (A)(1) An attorney, concerning a communication made to the attorney by a client in that relation or the attorney’s advice to a client, except that the attorney may testify by express consent of the client * * *. However, if the client voluntarily testifies or is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject.”

{¶ 18} Malm relies heavily on Harpman v. Devine (1937), 133 Ohio St. 1, 9 O.O. 347, 10 N.E.2d 776, and Tandon v. Tandon (Dec. 27, 1999), 7th Dist. No. 99JE36, 1999 WL 1279162. The court in Harpman was faced with the question of whether the plaintiff had voluntarily testified regarding any relationship with a physician “that could fall within the purview of ‘communications’ or ‘advice.’ ” Id. at 5, 9 O.O.

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Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 832, 183 Ohio App. 3d 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-roman-friedberg-lewis-lpa-v-malm-ohioctapp-2009.