Talismanic Props., LLC v. Tipp City

309 F. Supp. 3d 488
CourtDistrict Court, S.D. Ohio
DecidedMarch 7, 2017
DocketCase No. 3:16–cv–285
StatusPublished
Cited by10 cases

This text of 309 F. Supp. 3d 488 (Talismanic Props., LLC v. Tipp City) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Talismanic Props., LLC v. Tipp City, 309 F. Supp. 3d 488 (S.D. Ohio 2017).

Opinion

On October 31, 2016, Plaintiff Judith Tomb sent an email to Eggleston concerning this litigation and attaching and/or referencing1 three additional emails the City produced in response to public records requests.2 See doc. 27-6 at PageID 650. Ms. Tomb copied at least fourteen other people on that email, at least one of whom (Colleen Eidenmiller) is neither a party to this case nor employed by a party in this case. Id. ; see also doc. 39 at PageID 1460.

On November 3, 2016, as directed by the Court, the parties submitted simultaneous briefs concerning the issue of privilege. Docs. 26, 27. In their brief, Plaintiffs identified the three other emails referenced by Ms. Tomb in her October 31, 2016 email to Eggleston, and argued that any claim of privilege as to those emails is now waived as a result of the City's disclosure of those documents in response to public records requests. See doc. 26 at PageID 569-71; see also docs. 26-6, 26-7, 26-8, 26-9.

In its brief, the City moved to "clawback" privileged documents inadvertently disclosed to Plaintiffs. Doc. 27 at PageID 608-14. Notably, the City argued that certain documents known to it to have been *493disclosed to Plaintiffs3 were protected by the attorney-client privilege. Doc. 27 at PageID 608-14. In addition, the City moved to terminate depositions in this case based upon the purportedly bad faith and oppressive conduct of Plaintiffs' counsel, Jeremy Tomb (Ms. Tomb's son). Id. With regard to allegations of bad faith, the City points to Attorney Tomb's conduct during Eggleston's deposition in which he suggested that Eggleston and the City's outside attorney had engaged in unidentified criminal conduct-perhaps perjury-and may want to assert their rights against self-incrimination under the Fifth Amendment. See doc. 23-2.

Subsequently, the Court ordered supplemental briefing regarding: (1) the apparent violation of Fed. R. Civ. P. 26(b)(5)(B) by Ms. Tomb and her attorneys when Ms. Tomb disseminated alleged privileged communications on October 31, 2017 and her attorneys filed those documents on the Court's docket on November 3, 2017; and (2) whether privilege extends to the disclosed emails. Doc. 37. Plaintiffs filed a response regarding application of Rule 26 to the disclosure at issue (doc. 39), and the City filed a supplemental memorandum regarding application of privilege (doc. 42).

II.

Because this case is before the Court on federal question jurisdiction, federal law governs issues of privilege. See Hancock v. Dodson , 958 F.2d 1367, 1373 (6th Cir. 1992). Information is protected by the attorney-client privilege:

(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." In re Professionals Direct Ins. Co. , 578 F.3d 432, 438 (6th Cir. 2009) (citing Hickman v. Taylor , 329 U.S. 495, 510-14, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ). Specifically, Fed. R. Civ. P. 26(b)(3) provides that "a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." Fed. R. Civ. P. 26(b)(3).

Plaintiffs argue that, regardless of what privilege applies to the documents, the City waived all claims of privilege with regard to these documents when they produced them in response to public records requests. See doc. 26. The City argues that the documents were "inadvertently disclosed" and that the Court should permit the "clawback" of these documents by application of Fed. R. Evid. 502. Doc. 27 at PageID 608-14.

Prior to enactment of Evidence Rule 502, decisions in this District held that, in determining whether an inadvertent disclosure results in waiver, courts consider:

(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document *494production, (2) the number of inadvertent disclosures, (3) the extent of the disclosure, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.

See Nilavar v. Mercy Health Sys.-W. Ohio , No. 399CV612, 2004 WL 5345311, at *3 (S.D. Ohio Mar. 22, 2004) ; Hawkins v. Anheuser-Busch, Inc. , No. 2:05-CV-688, 2006 WL 2040405, at *2 (S.D. Ohio June 19, 2006) ; Evenflo Co. v. Hantec Agents Ltd. , No. 3:05-CV-346, 2006 WL 2945440, at *5 (S.D. Ohio Oct. 13, 2006). In fact, a majority of courts throughout the country had taken the same position. See Fed. R. Evid. 502, Advisory Committee Notes (Nov. 28, 2007). Effective September 19, 2008, Evidence Rule 502(b) formally adopted this majority view.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
309 F. Supp. 3d 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talismanic-props-llc-v-tipp-city-ohsd-2017.