DeCrane v. Eckart et al

Filing 106

Opinion and Order. The Magistrate Judge's Discovery Order (Related doc # 87 ) is upheld. The Court finds that the Magistrate Judge's Order was not clearly erroneous nor contrary to law. The parties shall proceed as outlined herein. Judge Christopher A. Boyko on 1/23/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SEAN DECRANE,
Plaintiff,
vs.
EDWARD J. ECKART, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 1:16CV2647
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Plaintiff Sean DeCrane’s Objections (ECF
DKT #90) to Magistrate Judge’s Order to Disclose Attorney Work-Product Recordings to
Defense Counsel. For the following reasons, the Discovery Order (ECF DKT #87) is upheld.
I. BACKGROUND
As part of the preparation of Plaintiff’s case, Plaintiff’s counsel elected to conduct
witness interviews with current and former City of Cleveland employees. Plaintiff’s counsel
directed a Summer Law Clerk, Brian Bardwell, to conduct the interviews and record them
with the interviewee’s permission. In June of 2017, the witness interviews were cleared
through Thomas Hanculak, counsel for the International Association of Fire Fighters Local

93, and William Menzalora, Chief Assistant Law Director. On September 13, 2017, Plaintiff
produced six signed declarations of current and former fire fighters. Defendants deposed two
of the witnesses and obtained a declaration from a third, former Chief Patrick Kelly.
On February 7, 2018, defense counsel warned Plaintiff’s counsel that Defendants
would be seeking their disqualification, charging in part that Bardwell did not instruct
interviewee Kelly that he should not disclose privileged communications with City attorneys.
Faced with the threatened motion for disqualification, Attorney Subodh Chandra
granted an interview with cleveland.com reporter Robert Higgs and played a few selected
excerpts/snippets of Bardwell’s interview recordings. (Chandra Declaration, ECF DKT 624). These excerpts reflected that Bardwell informed witnesses that he was a law student, that
he was unable to give legal advice and that the witnesses should not share with him any
conversations between the witnesses and the City’s attorneys.
On February 27, 2018, Defendant City of Cleveland filed a Motion to Compel and for
Sanctions under Civil Rule 37. (ECF DkT #52). Defendant argues that Plaintiff has
deliberately withheld audio recordings that are relevant to the claims in this case and that are
responsive to several of the City’s discovery requests. The recordings are verbatim recorded
statements that Plaintiff’s counsel procured from current and former City employees.
Defendants assert that they only became aware of the existence of these recordings after
Plaintiff’s counsel played a portion of their contents for a reporter at cleveland.com in
connection with a published news story on this litigation.
Plaintiff objects and contends that the recordings are protected as the work product of
Plaintiff’s counsel. Pursuant to Fed.R.Civ.P. 26(b)(3)(B), work product includes materials

-2-

reflecting “mental impressions, conclusions, opinions, or legal theories of a party’s attorney
or other representative concerning the litigation.” Plaintiff further argues that the recordings
are more than verbatim witness statements because they reveal “Chandra Law’s mental
impressions from the questions asked, comments made, follow-ups, and reactions.” (ECF
DKT #90 at 7). While recording, Bardwell annotated the recordings in order to highlight the
important portions and to avoid having to play back the entire interview. Specifically,
Bardwell states in his Declaration: “When the interview subject says something that I find
particularly important, I make an audible notation that allows me to quickly locate it when
reviewing the file in waveform.” (ECF DKT #62-6 at 8).
Defendant City of Cleveland emphasizes that there is no available substantial
equivalent to these recordings. Two of the witnesses largely cannot remember what they had
discussed with Bardwell. Discovery has closed; thus, Defendants are unable to compel exemployees to be deposed and current employees’ interviews would not be usable in support of
summary judgment.
Defendant City points out that its disclosure request is narrowly-tailored:
Defendants seek only the recordings themselves, which contain the verbatim
witness statements of fact witnesses. Defendants do not seek any
accompanying notes or annotations made by Plaintiff’s counsel. (ECF DKT
#52 at 2).
Moreover, the City proposes that the “flagged” annotations could be redacted or the
recordings could be transcribed without the notations.
Defendant City argues that Plaintiff never identified the recordings and annotations in
a privilege log. Further, Plaintiff has acted inconsistently with work-product privilege by
publicly revealing a portion of the content of the recordings by playing them in an interview
-3-

with a cleveland.com reporter.
On April 27, 2018, the Magistrate Judge ordered Plaintiff to disclose the recordings
within fourteen days, under the terms of the parties’ Stipulated Protective Order and
preserving arguments as to admissibility. (ECF DKT #87). Plaintiff has filed timely
Objections. (ECF DKT #90).
II. LAW AND ANALYSIS
Appeal of Non-Dispositive Matters
Local Rule 72.3 recites:
Any party may appeal from a Magistrate Judge’s order determining a motion
or matter made pursuant to Fed. R. Civ. P. 72(a) within fourteen (14) days after
service of the Magistrate Judge’s order. Such party shall file with the Clerk of
Court, and serve on the Magistrate Judge and all parties, a written statement of
appeal which shall specifically designate the order, or part thereof, appealed
from and the basis for any objection thereto. The District Judge to whom the
case was assigned shall consider the appeal and shall set aside any portion of
the Magistrate Judge’s order found to be clearly erroneous or contrary to law.
The District Judge may also consider sua sponte any matter determined by a
Magistrate Judge under this Rule.

Work-Product Privilege
“[T]he work product doctrine ‘is distinct from and broader than the attorney-client
privilege.’” In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). “While the
attorney-client privilege protects only confidential communications, the work product
doctrine generally protects from disclosure documents prepared by or for an attorney in
anticipation of litigation.” Reg’l Airport Auth. v. LFG, LLC, 460 F.3d 697, 713 (6th Cir.
2006) (citing In re Antitrust Grand Jury, 805 F.2d at 163; Hickman v. Taylor, 329 U.S. 495,
510-12 (1947)). The burden is on the party claiming protection to show that anticipated

-4-

litigation was the “driving force” behind the preparation of each requested document. In re
Prof’ls Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009).
Work-product protection may be waived by voluntary disclosure of private
communications to third parties. New Phoenix Sunrise Corp. v. C.I.R., 2010 WL 4807077 at
*8 (6th Cir. Nov.18, 2010). In this regard, the Sixth Circuit emphasized in In re
Columbia/HCA Healthcare Corp. v. Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir.
2002):
So-called “fact” work product, the “written or oral information transmitted to
the attorney and recorded as conveyed by the client,” may be obtained upon a
showing of substantial need and inability to otherwise obtain without material
hardship. However, absent waiver, a party may not obtain the “opinion” work
product of his adversary; i.e., “any material reflecting the attorney’s mental
impressions, opinions, conclusions, judgments, or legal theories.” (Internal
citations omitted).
The Court finds that the Magistrate Judge had before him the parties’ lengthy briefs,
numerous exhibits, citations to relevant case law and clearly-articulated arguments. Although
the Magistrate Judge’s Order is brief, the Court does not agree with Plaintiff that the
Magistrate Judge failed to address the merits of the dispute.
III. CONCLUSION
Considering Plaintiff’s Objections and applying the above legal principles under the
authority of Local Rule 72.3, the Court finds that the Magistrate Judge’s Order was not
clearly erroneous nor contrary to law.
Plaintiff shall turn over the audio recordings made of the interviews of the City’s
current and former employees on or before February 5, 2019. The Court finds that a sanctions
award is not justified.

-5-

Defendant City of Cleveland has made the commitment on the record before the Court
that it does not and will not seek any notes, annotations or recorded mental impressions of
Plaintiff’s counsel. To that end, Plaintiff’s counsel may delete or redact Brian Bardwell’s
annotations on the recordings prior to disclosure.
The Court reminds all counsel and parties of their obligation to act cooperatively and
to conduct this litigation in a temperate, dignified and responsible manner.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 23, 2019

-6-