Baumgardner v. Tenacity Manufacturing Company et al
Filing
60
ORDER denying LBS's 54 Motion to Quashthe subpoena. Signed by Magistrate Judge Karen L. Litkovitz on 2/28/2013. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY BAUMGARDNER,
Plaintiff,
vs.
LOUSIANA BINDING SERVICE, INC.,
Defendant.
Case No. 1: 11-cv-794
Beckwith, J.
Litkovitz, M.J.
ORDER
Plaintiff, Timothy Baumgardner, brings this action against his former employer,
defendant Louisiana Binding Service, Inc. (LBS), alleging breach of employment contract.
(Doc. 2). 1 This matter is currently before the Court on LBS's motion to quash plaintiffs
subpoena for certain documents and to depose Christopher Carrigg, Esq., and for a protective
order (Doc. 54), plaintiffs response in opposition (Doc. 57), and LBS's reply memorandum.
(Doc. 59).
I. Factual and Procedural Background
Plaintiff alleges that he was employed as a salesman by Tenacity Manufacturing
Company (Tenacity) from 1974 until approximately January 2010, when he entered into an
employment contract with LBS. (Doc. 2, ~ 3). Pursuant to the contract, plaintiff was to receive a
severance package in the event he was terminated by LBS without cause or ifLBS were sold.
!d., ~~ 13-16. Tenacity later sued plaintiff and LBS in the Court of Common Pleas for Hamilton
County, Ohio alleging misappropriation of trade secrets. !d., ~ 18. Plaintiff alleges that during
the course of the state court litigation, the owners of Tenacity negotiated with LBS owners
1Plaintiffs complaint includes various other tort claims against other individuals and entities. See Doc. 1.
However, these claims were dismissed August 22, 2012, by order of the District Judge. (Doc. 46).
Patrick Williams and Scott Williams to purchase LBS.
!d.,~
19. Plaintiff further alleges he was
terminated without cause by LBS at approximately the same time that Tenacity purchased LBS,
after which Tenacity dismissed its lawsuit against LBS. !d., ~~ 20-24.
Plaintiffs sole claim is that LBS violated his employment contract by terminating him
without cause and failing to provide him payments he is contractually due. !d., ~~ 29-34. Under
the employment contract, LBS is required to pay plaintiff certain severance payments in the
event he was terminated without cause. Conversely, if plaintiff was terminated with cause, he is
due nothing. See Doc. 2 at 14-16 (Employment Contract). Plaintiffs claim therefore turns on
whether or not LBS discharged him with cause.
In the course of discovery, plaintiff issued a subpoena to Christopher Carrigg, Esq.
(Carrigg), commanding him to appear for a deposition on November 16, 2012. See Doc. 57, Ex.
1. The parties agree that Carrigg was acting counsel for both LBS and plaintiff in the state court
Tenacity lawsuit. See Doc. 54 at 5; Doc. 57 at 1. The subpoena further commands Carrigg to
produce "[t]he complete file and all documents relating to Tenacity Manufacturing Company v.
Baumgardner, et al., Court of Common Pleas, Hamilton County, Ohio, Case No. A 1003621."2
!d. LBS asserts the subpoena must be quashed as the information sought is not relevant to
plaintiffs breach of contract claims and, further, is protected by the attorney-client privilege as
Carrigg was acting counsel for LBS in the state court matter.
II. Standard of Review
Rule 45 of the Federal Rules of Civil Procedure governs motions to quash subpoenas.
Fed. R. Civ. P. 45. Courts must quash subpoenas requiring "disclosure of privileged or other
protected matter, if no exception or waiver applies .... " Fed. R. Civ. P. 45(c)(3)(A)(iii). "[T]he
2
Plaintiff initially named Tenacity Manufacturing Company (Tenacity) as a defendant in the instant action
(Doc. 2); however, plaintiffs claims against Tenacity were dismissed pursuant to the District Judge's grant of
Tenacity's summary judgment motion. (Doc. 46).
2
burden of persuasion in a motion to quash a subpoena ... is borne by the movant." US. v. Int'l
Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979). See also In re Smirman, 267 F.R.D. 221,
223 (E.D. Mich. 2010); Recycled Paper Greetings, Inc. v. Davis, No. 1:08-mc-13, 2008 WL
440458, at *3 (N.D. Ohio Feb.13, 2008). In reviewing a motion to quash, the court may consider
"whether (i) the subpoena was issued primarily for the purposes of harassment, (ii) there are
other viable means to obtain the same evidence, and (iii) to what extent the information sought is
relevant, nonprivileged, and crucial to the moving party's case." Bogosian v. Woloohojian
Realty Corp., 323 F.3d 55, 66 (1st Cir. 2003) (citing cases). "If the documents sought by the
subpoena are relevant and are sought for good cause, then the subpoena should be enforced
unless the documents are privileged or the subpoenas are unreasonable, oppressive, annoying, or
embarrassing." Recycled Paper Greetings, No. 1 :08-mc-13, 2008 WL 440458, at *3 (internal
quotations and citations omitted).
III. Analysis
LBS seeks to quash the instant subpoena asserting that: (1) the deposition testimony and
documents plaintiff seeks are not relevant to his breach of contract claims; and (2) the
information sought is protected by the attorney-client privilege. LBS asks this Court to quash the
subpoena and enter an order that Carrigg is not required to produce the purportedly privileged
documents or appear for a deposition in this case. (Doc. 54 at 2-3).
In response, plaintiff contends the subpoenaed documents and testimony are relevant to
his breach of contract claims as they relate to LBS 's stated reason for terminating his
employment. Plaintiff further argues that the documents and testimony are not protected by the
attorney-client privilege as Carrigg was acting as counsel for both plaintiff and LBS and no
attorney-client privilege attaches between jointly represented clients. Plaintiff also asserts that
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even if the documents and testimony are protected, the privilege was waived when Patrick
Williams, owner of LBS, voluntarily testified about conversations he had with Carrigg during the
course of the joint representation about why plaintiff was going to be terminated.
For the following reasons, LBS's motion to quash the subpoena is denied.
A. The discovery sought in the subpoena is relevant to plaintiffs claim.
LBS asserts that the subpoenaed information is not relevant to plaintiffs breach of
contract claim as the only pertinent issue is whether plaintiff was fired with or without cause and,
thus, is or is not due severance pay under his employment contract. LBS argues that any
conversations Patrick Williams (Williams) had with Carrigg regarding plaintiffs pending
discharge or the reasons for the discharge are not relevant to this inquiry. LBS contends that
"[t]he sole issue is whether or not the contract was breached. The intent of a party to a contract,
expressed or not expressed, is irrelevant to the issue of whether the contract was breached."
(Doc. 54 at 4).
"The scope of discovery is ... within the broad discretion ofthe trial court." Lewis v.
ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). The Federal Rules of Civil
Procedure provide that "[p]arties may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense .... " Fed. R. Civ. P. 26(b)(l). "Evidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. "The
scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test
is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible
evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970); see also Fed. R.
Civ. P. 26(b)(1). In other words, the Court construes discovery under Rule 26 "broadly to
4
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978). Pretrial discovery serves the purpose ofmaking "a trial less a game ofblind man's
buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable
extent." U.S. v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). However, where strong
public policy weighs against disclosure, the Court should balance a party's "right to discovery
with the need to prevent 'fishing expeditions."' Conti v. Am. Axle and Mfg., Inc., 326 F. App'x
900, 907 (6th Cir. 2009) (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)).
LBS's argument is, essentially, that because LBS produced a discharge letter in the
course of discovery which sets forth several bases for plaintiffs termination, any "expressed
additional reasons for the discharge are of no consequence" and are not relevant to plaintiffs
claim. (Doc. 54 at 4-5). The discharge letter produced by LBS provides that plaintiff was
terminated for: (1) engaging in conversations with Tenacity employees that are damaging to
LBS; (2) releasing derogatory comments about customers to the customers; (3) releasing LBS
customer service lists in e-mails; and (4) performing below expectations. (Doc. 59, Ex. 1).
However, Williams testified at his deposition that plaintiff was fired for allegedly bringing
documents to LBS from Tenacity; attempting to destroy them during the Tenacity lawsuit; and
planning on committing perjury. See Doc. 56 at 41-42 (Deposition of Patrick Williams). This
substantive change in the stated basis for plaintiffs discharge brings into question: (1) the
credibility ofboth LBS and Williams; and (2) whether the reasons given for firing plaintiff were
mere pretext to avoid paying him a substantial severance package. 3 Thus, insofar as LB S
3
The employment agreement provides that in the event LBS terminates plaintiff without cause, plaintiff is
entitled to 36 months of salary, including a five percent cost of living increase, and continued health insurance for
one year. (Doc. 2 at 15).
5
contends that "additional reasons for [plaintiffs] discharge are of no consequence" to plaintiffs
breach of contract claim, this argument fails. (Doc. 54 at 5).
The crux of plaintiffs claim is that LBS violated his employment contract by not
providing him a contracted for benefit after firing him without cause. Accordingly, any and all
reasons stated by LBS, Williams, or any other LBS employee are highly relevant because they
serve to either support or detract from plaintiffs claim that he was fired without cause. See
Powell v. Time Warner Cable, Inc., No. 2:09-cv-600, 2010 WL 5464895, at *4 (S.D. Ohio Dec.
30, 201 0) (in wrongful discharge action, parties are entitled to discovery of documents reflecting
reasons for plaintiffs termination). LBS appears to argue that the discharge letter produced in
discovery is indisputable evidence that plaintiff was terminated for cause - that it is res ipsa
loquitur evidence. However, Williams testified that plaintiff was terminated for reasons not
stated in the letter. The subpoenaed documents and testimony regarding Williams' statements to
Carrigg about plaintiffs termination could lend support to or detract from Williams' testimony,
the rationale provided by LBS in their discharge letter, and/or plaintiffs credibility. As the
subpoenaed discovery has a "tendency to make [the fact ofwhether plaintiff was terminated with
or without cause] more or less probable than it would be without the evidence," it is relevant.
Fed. R. Evid. 401.
LBS further argues against enforcing the subpoena on the ground that any information
obtained from Carrigg would be hearsay. The Court disagrees. First, there is no evidence before
the Court from which the undersigned can determine that the subpoenaed evidence is hearsay.
Second, LBS's assertion fails to acknowledge that the evidence could be introduced not for the
truth of the matter asserted, but to impeach a witness and, thus, would not be hearsay evidence.
See Fed. R. Evid. 801(c) (Hearsay is defined as "a statement that ... a party offers in evidence to
6
prove the truth of the matter asserted in the statement."). In this same vein, LBS's argument
ignores the possibility that even if the evidence is hearsay evidence it may be admissible under
an exception to the hearsay rule. See Fed. R. Civ. P. 803 (listing exceptions to exclusionary
hearsay rule). Lastly, whether or not the discovery is hearsay has no bearing on whether it is
discoverable- "[r]elevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(l).
As the undersigned finds the subpoenaed information is relevant, the Court must now
determine whether it is protected from disclosure pursuant to the attorney-client privilege.
B. The subpoenaed discovery is not protected from disclosure by the attorney-client
privilege.
LBS contends the subpoenaed documents and testimony are not subject to disclosure as
they are protected by the attorney-client privilege. Plaintiff does not dispute that the subpoena
seeks discovery related to statements made by Williams to his attorney, Carrigg, but argues the
attorney-client privilege does not protect the statements for two reasons. First, because plaintiff
was Carrigg's co-client, the privilege cannot be invoked when an attorney jointly represents two
parties. Second, even if the discovery is protected by the privilege, Williams waived the
privilege by voluntarily testifying at his deposition about statements he made to Carrigg about
plaintiffs termination.
Unless waived, the attorney-client privilege protects communications made by a client in
confidence to his attorney in order to secure legal services or assistance in legal proceedings.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998). The privilege is intended to "encourage
full and frank communication between attorneys and their clients and thereby promote broader
public interests in the observance oflaw and administration of justice." Upjohn Co. v. US., 449
U.S. 383, 389 (1981 ). The privilege may be asserted by corporate entities as well as individuals,
7
Commodity Futures Trading Com. v. Weintraub, 471 U.S. 343, 348 (1985), but it is to be
narrowly construed to prevent frustrating the fact-finding process. See In re Grand Jury
Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir. 1983). Thus, "[t]he burden of
establishing the existence of the privilege rests with the person asserting it." !d. at 450.
"Ohio's attorney-client privilege is governed by both common law and statute." In re
Professionals Direct Ins. Co., 578 F.3d 432,440 (6th Cir. 2009). 4 Plaintiff argues that under
Ohio common law, Williams' statements to Carrigg about why plaintiff was fired were made
during Carrigg's joint representation of LBS and plaintiff and, consequently, are not protected
because "a client of an attorney cannot invoke the [attorney-client] privilege in litigation against
a co-client." (Doc. 57 at 4) (quoting Squires Sanders & Dempsey, L.L.P. v. Givaudan Flavors
Corp., 937 N.E.2d 533, 540 (Ohio 2010). Plaintiffs argument raises the Ohio common-law
joint-representation exception to the attorney-client privilege. This exception applies:
when the same attorney acts for two parties having a common interest, and each
party communicates with him. Here the communications are clearly privileged
from disclosure at the instance of a third person. Yet they are not privileged in a
controversy between the two original parties, inasmuch as the common interest
and employment forbade concealment by either from the other.
8 Wigmore on Evidence (3d Ed. 1940), § 2312. As noted by plaintiff, the Ohio Rules of
Professional Conduct further provide that the attorney-client privilege does not attach between
commonly represented clients and "it must be assumed that if litigation does later occur between
the clients, the privilege will not protect communications made on the subject of the joint
representation, while it is in effect, and the clients should be so advised." Ohio Prof. Cond. Rule
1.7 cmt 26 (2007) (emphasis added).
LBS claims the exception is limited to communications made on the subject ofthejoint
representation and Williams' statements to Carrigg- that plaintiff was improperly in possession
4
The Court applies Ohio privilege law to this diversity action pursuant to Federal Rule of Evidence 501.
8
of Tenacity's client information and planning on perjuring himself- related to plaintiffs ongoing
employment at LBS and not to Carrigg's representation of the parties in the Tenacity litigation.
LBS argues that "the absence of privilege pertains only to those issues relative to the common
interests of the representation." (Doc. 59 at 2-3) (citing Emley v. Selepchak, 63 N.E.2d 919, 922
(Ohio App. Ct. 1945) (exception to attorney-client privilege exists when attorney acts for two
parties with a common interest); Netzley v. Nationwide Ins. Co., 296 N.E.2d 550, 561 (Ohio Ct.
App. 1971) (finding exception to privilege where co-clients have mutuality of interest and
holding that letter from trial counsel to insurance company was not protected from disclosure to
plaintiff, who was joint defendant with insurance company in previous auto accident lawsuit);
Sarbey v. National City Bank, Akron, 583 N.E.2d 392, 398 (Ohio Ct. App. 1990) (attorney-client
privilege does not attach to "matters comprehended by that joint representation."). LBS asserts
that because the common interest shared by LBS and plaintiff in the Tenacity litigation was the
alleged misappropriation of trade secrets and not plaintiffs ongoing employment, the statements
made by Williams to Carrigg about why plaintiff was fired are privileged.
To determine whether the statements made by Williams to Carrigg related to the joint
representation, the Court examines Williams' deposition testimony. At the deposition, Williams
was asked about whether or not plaintiff had given confidential information to LBS that he
obtained from Tenacity. (Doc. 56 at 40). Williams testified as follows:
A. [Williams]. So at the - - At the time [Carrigg] was calling to make
arrangements to depose myself and [plaintiff], [plaintiff] called me after work one
day and asked me to destroy evidence that he gave - not evidence - destroy just
documents that he had taken out of Tenacity.
A. There- We were scheduling depositions and I called [Carrigg] and told him
you couldn't take [plaintiff]'s depositions because he was perjuring himself and
that I had to go and look for these documents he was asking me to destroy, see if
they existed and if they were in the building.
9
Q. Okay. But-
A. So I went around and Q. You mean the attorney told you to do that or-
A. No. I told [Carrigg] that he can't do the depositions because [plaintiff]'s
perjuring himself. I found out that [plaintiff] was perjuring himself and lying and
that he asked me to destroy these documents. So I went and looked for the
documents. And I hired [another] attorney, got his opinion on whether I could
keep [plaintiff] as an employee or not; and he said, no, I had to fire him. And I
had to let [Carrigg] know.
Q. And what did you tell [Carrigg]?
A. That [plaintiff] was going to perjure himself and he can't depose him. I was
going to seek legal advice on what to do.
!d. at 41, 65, 74.
Given this testimony, the undersigned cannot conclude that Williams' testimony was
related solely to plaintiffs employment situation with LBS. LBS and plaintiff were codefendants and jointly represented by Carrigg in the Tenacity litigation on claims that both had
misappropriated Tenacity's trade secrets. Williams' statements to Carrigg regard facts that were
highly pertinent to Tenacity's claims, specifically that plaintiff had allegedly misappropriated
Tenacity's trade secrets. Williams' statements also related directly to Carrigg's joint defense of
LBS and plaintiff inasmuch as Williams directed the litigation strategy by telling Carrigg to not
proceed with plaintiffs deposition. Consequently, LBS's argument that the statements are
privileged because they are not related to the joint representation is not well-taken.
Even if Williams' statements are protected by the attorney-client privilege, the
undersigned finds that the statements are nevertheless discoverable as Williams waived the
privilege by voluntarily testifying about the communication with Carrigg. Ohio law provides
that an attorney may not testify about privileged communications made by a client to the attorney
10
unless the client waives the privilege by voluntarily testifying, under which circumstances "the
attorney may be compelled to testify on the same subject." Ohio Rev. Code§ 2317.02(A)(l).
See also Rubel v. Lowe's Home Centers, Inc., 580 F. Supp.2d 626, 628 (N.D. Ohio 2008) (citing
Spitzer v. Stillings, 142 N.E. 365 (Ohio 1924)) ("Courts ... can compel attorneys to testify to the
same general subject matter as the client's prior testimony."). Plaintiff contends that Williams
waived his attorney-client privilege when he testified at his deposition about statements he made
to Carrigg regarding plaintiffs alleged wrongdoing and termination. Plaintiff thus asserts the
subpoena should be enforced. LBS argues that Williams did not voluntarily testify about his
conversations with Carrigg, noting that "[p]laintiffs counsel sought to probe into attorney-client
privileged communications over 40 times in the course of the deposition." (Doc. 59 at 4). It is
undisputed that the testimony at issue was provided during the course of a deposition and that no
objections were levied on the basis of attorney-client privilege. Thus, the only issue is whether
such testimony is "voluntary."
LBS cites to Harpman v. Devine, 10 N.E.2d 776 (Ohio 1937) and Tandon v. Tandon, No.
99 JE 36, 1999 WL 1279162 (Ohio Ct. App. Dec. 27, 1999), in support of its contention that
Williams' testimony was not voluntary. In Harpman, the Ohio Supreme Court determined that a
plaintiff-patient did not waive his patient-physician privilege by testifying at trial about treatment
received under cross-examination because the testimony was not voluntary. Harpman, 10
N.E.2d at 778. The court based its decision on the facts that: (1) the plaintiff"was obliged to
answer the questions whether he desired to or not[;]" (2) defense counsel directed the
questioning; and (3) plaintiff faced contempt of court if he elected to not answer. Id. 5 In
5
0hio courts recognize that the principles enunciated in Harpman extend to issues involving waiver of
attorney-client privilege. See Foley v. Paschke, 32 N.E.2d 858, 860 (Ohio Ct. App. 1940); Meyers Roman
Friedberg & Lewis v. Maim, 916 N.E.2d 832, 835-36 (Ohio Ct. App. 2009).
11
Tandon, the appellate court applied the Harpman rationale in the attorney-client context and held
that testimony given during cross-examination was not voluntary as "the client and his counsel
do not have control of the questions or the information which is to be elicited." Tandon, 1999
WL 1279162, at *3. Relying on these cases, LBS argues that Williams' testimony regarding his
statements to Carrigg were not voluntary such that the attorney-client privilege was waived as
the testimony was given only in response to questions posed by plaintiffs counsel. LBS's
interpretation is not supported by the relevant case law.
Ohio courts have expressly "declined to adopt a bright-line rule that testimony in a
deposition that is solicited by an opponent can never be voluntary." Malm, 916 N.E.2d at 836
(citing Amer Cunningham Co., L.P.A. v. Cardiothoracic & Vascular Surgery ofAkron, No.
20899, 2002 WL 1800323 (Ohio Ct. App. Aug. 7, 2002). Even the Tandon decision, cited by
LBS, recognized that its holding "should not be read so as to create a blanket rule that a client
may make any statement regarding counsel during cross-examination without the fear of waiving
the privilege. If this court is presented with the proper circumstances, we will not hesitate to find
a waiver of the attorney-client privilege despite the fact that the statements made by a client were
on cross-examination." !d. at *4. Rather, a court analyzing whether deposition testimony is
voluntary "must consider the facts of the case before it, specifically the questions and answers
from the deposition, and then decide if the testimony concerning the relevant information was
voluntary." Amer Cunningham, 2002 WL 1800323, at *3. A court should consider whether any
objections based on the attorney-client privilege were interposed during the relevant questioning
or whether the deponent refused to answer any questions about the communications in question.
!d.
12
Though plaintiff's counsel asked several questions regarding Williams' statements to
Carrigg, see, e.g., Doc. 56 at 39, 43, the testimony at issue involves Williams' responses to
questions about his actions after plaintiff allegedly told him to destroy documents. Specifically,
in response to a question about when plaintiff allegedly told Williams to destroy documents,
Williams, on his own and through no leading question or prompting by plaintiff's counsel,
volunteered the conversation he had with Carrigg:
Q [plaintiff's counsel]. What is it that jogged - What makes you think it was
February 2011, that [plaintiff] asked you to destroy documents?
A [Williams]. That's what I recall.
Q. Okay. I mean, is there anything that makes you recall it was February?
A. There- We were scheduling depositions and I called [Carrigg] and told him
you couldn't take [plaintiff]'s depositions because he was perjuring himself and
that I had to go and look for these documents he was asking me to destroy, see if
they existed and if they were in the building.
Q. Okay. ButA. So I went around and -
Q. You mean the attorney told you to do that orA. No. I told [Carrigg] that he can't do the depositions because [plaintiff]'s
perjuring himself. I found out that [plaintiff] was perjuring himself and lying and
that he asked me to destroy these documents. So I went and looked for the
documents. And I hired [another] attorney, got his opinion on whether I could
keep [plaintiff] as an employee or not; and he said, no, I had to fire him. And I
had to let [Carrigg] know.
(Doc. 56 at 64-65). Notably, Williams' counsel raised no objections based on attorney-client
privilege to any of plaintiff's counsel's questions. Further, Williams' testimony regarding his
communications with Carrigg was not given in response to questions directed at the attorneyclient communication but to Williams' actions following plaintiff's purported unlawful conduct.
See Doc. 56 at 41, 65, 74. Accordingly, the testimony was voluntary. See Maim, 916 N.E.2d at
13
838; Amer Cunningham, 2002 WL 1800323, at *3 (deposition testimony was voluntary and
amounted to waiver of attorney-client privilege where no attorney-client privilege objections
raised and deponent fully answered all questions). The undersigned therefore finds that
Williams' waived his attorney-client privilege by providing voluntary deposition testimony
regarding his communications with Carrigg about plaintiffs purported misconduct. As such,
plaintiff is entitled to depose Carrigg and view documents in Carrigg's possession relating to this
testimony.
Lastly, the Court addresses plaintiffs request for sanctions. Plaintiff seeks reasonable
attorney fees involved in responding to the instant motion, contending that the motion is
frivolous as Ohio law clearly holds that no attorney-client privilege attached to Williams'
statements to Carrigg. The Federal Rules of Civil Procedure provide that a non-moving party
may seek reasonable attorney's fees incurred responding to a frivolous motion. See Fed. R. Civ.
P. 11(b)(2), (c)(2). However, "[a] motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violates Rule 11(b)." Fed. R. Civ.
P. 11(c)(2) (emphasis added). Plaintiffs one-sentence request for attorney's fees contained in
his response to LBS's motion to quash fails to comply with the procedural requirements for
seeking sanctions under the Rule and, thus, must be denied. See Ridder v. City ofSpringfield,
109 F.3d 288, 294 (6th Cir. 1997) ("[A] party seeking sanctions must follow a two-step process:
first, serve the Rule 11 motion on the opposing party for a designated period (at least twenty-one
days); and then file the motion with the court.") Further, the undersigned finds that LBS's
motion, although denied, was not frivolous such that it is sanctionable. LBS supported its claim
of attorney-client privilege with citations to authority which could reasonably be interpreted as
standing for LBS's proposition. Plaintiffs request for sanctions is therefore denied.
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IV. Conclusion
For the above reasons, LBS's motion to quash the subpoena (Doc. 54) is DENIED.
IT IS SO ORDERED.
Date:2~k3
~/.~
Karen L. Litkovitz
United States Magistrate Judge
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