Bard v. Brown County et al

Filing 30

ORDER - The Court reserves ruling on nonparty Dennis Varnaus motion to quash (Doc. 15) pending: *Submission to defendants and the Court of a privilege log that identifies the materials requested in the subpoena for which Varnau claims work product protection and provides the required information for those materials within 20 days of the date of this Order; and, *Submission of the documents identified in the privilege log to the undersigned for incamera review wi thin 20 days of the date of this Order. Defendants' request for sequestration is GRANTED only insofar as it relates to depositions in this matter. Nonparty Dennis Varnau shall not attend the deposition of any other witness or any party in this lawsuit. Signed by Magistrate Judge Karen L. Litkovitz on 5/26/17. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ASHLEY BARD, individually
and as the administrator for the
Estate of Zachary Ryan Goldson,
Plaintiff,

Case No. 1:15-cv-00643
Dlott, J.
Litkovitz, M.J.

vs.

Brown County, et al.,
Defendants.

ORDER

Plaintiff Ashley Bard brings this action against defendants Brown County, Ohio; Brown
County Sheriff Dwayne Wenninger; Brown County Sheriff’s Office employees Ryan Wedmore,
Larry Meyer, Jason Huff, George Dunning, Zane Schadle, and Sarah McKinzie; and two John
Doe/Jane Doe defendants. Plaintiff brings this action individually and on behalf of decedent
Zachary Ryan Goldson, alleging civil rights violations arising out of Goldson’s death on October
5, 2013, during his incarceration as a pretrial detainee at the Brown County Jail. The matter is
before the Court on non-party Dennis Varnau’s motion to quash a subpoena issued by defendants
(Doc. 15) and defendants’ memorandum in opposition to the motion (Doc. 18). The matter is
also before the Court on supplemental briefs the parties filed following an informal telephone
discovery conference held on April 10, 2017. (Docs. 26, 27, 28).
I. Background
Plaintiff filed this action on October 2, 2015 (Doc. 1) and an amended complaint on
October 5, 2015. (Doc. 2). The amended complaint includes the following allegations:
Defendants Schadle and Dunning reported that they found the decedent hanging in his cell at

approximately 2:58 a.m. on October 5, 2013. The decedent was pronounced dead shortly after
an EMS team arrived at approximately 3:11 a.m. Upon its arrival, the EMS team found the
decedent on the ground handcuffed and with a sheet tied around his neck. The Brown County
coroner, Dr. Judith Varnau, was summoned and examined decedent at that time and on October
10, 2013. She confirmed the date of death but noted a pending investigation into the cause and
manner of death. Between October 5 and November 30, 2013, Dr. Varnau investigated physical
markings on decedent’s body as well as measurements and the configuration of his cell. She
concluded on November 30, 2013, that the cause of death was not suicide but homicide by
strangulation and she signed a Supplementary Medical Certification stating this was the official
cause of death. Based on these allegations, plaintiff brings claims under 42 U.S.C. § 1983 for
excessive use of force, denial of medical care, failure to keep the decedent safe, and failure to
preserve evidence. Plaintiff also brings state law claims for negligence, assault and battery,
wrongful death, spoliation of evidence, and intentional infliction of emotional distress.
Defendants issued a subpoena to Dennis Varnau on March 9, 2017, under Fed. R. Civ.
P. 45 directing him to produce the following materials: “Any and all documents, statements,
reports, certificates, affidavits, investigations, interviews, recordings, files, records, evidence,
correspondence, emails, memorandum, communications, [and] photographs, of whatever kind in
whatever form by and between you and [plaintiff’s counsel] John J. Helbling, Benjamin M.
Maraan II, and/or Phillip F. Cameron re: [decedent].” (Doc. 15-1). Varnau moved to quash the
subpoena on the grounds (1) the subpoena is unduly burdensome because it requests information
that is either a public record or is already in defendants’ possession, and (2) the requested
information is protected as work product of plaintiff’s attorneys and “as privileged
communication with Varnau’s personal counsel. . . .” (Doc. 15).

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Varnau submitted his affidavit in support of the motion. (Doc. 15-2). Varnau alleges in
the affidavit that he is a resident of Brown County who holds a degree in mechanical engineering
and a juris doctor degree, and he is also a certified police officer and an auxiliary police officer
for Sardinia, Ohio. (Doc. 15-2, Varnau Aff., ¶¶ 1, 3). His wife, Dr. Judith Varnau, served as the
Brown County coroner at the time of Goldson’s death and during the ensuing months. (Id., ¶¶ 5,
8). During this time period, Varnau provided “secretarial support services” for his wife on a
volunteer basis which consisted of assisting her with office paperwork and communications,
including receipt and processing of invoices from neighboring county coroner officers for
autopsies, receiving autopsy reports for cases originating in and around Brown County and
placing them in decedents’ files, and handling funeral home invoices for transportation of bodies.
(Id., ¶ 6). Varnau was “never involved at any death scene investigation relating to” Goldson.
(Id., ¶ 7). On or about June 10, 2015, plaintiff’s counsel contacted Varnau and consulted him
“for information and opinions regarding Mr. Goldson’s death in anticipation of litigation” on
behalf of Goldson’s estate. (Id., ¶¶ 4, 9). Plaintiff’s counsel has regularly consulted with Varnau
since June 10, 2015, regarding this litigation because of his “education, background, training and
experience,” and Varnau’s “analysis and opinions” have been created at the request of plaintiff’s
counsel in anticipation of litigation or to assist counsel in prosecuting plaintiff’s case. (Id., ¶¶ 912). The information Varnau has used to assist counsel was “obtained through public records,
through discovery, or . . . was provided to [Varnau by plaintiff’s counsel] for [his] analysis and
opinion on their behalf.” (Id., ¶ 10). Based on these allegations, Varnau contends that all of the
materials defendants seek relate to information Varnau “provided to Plaintiff’s counsel in their
pre-suit investigation in anticipation of litigation” of this case and are clearly protected as work

3

product, and that additional information considered to prepare documents and recordings are
“public record[s]” to which defendants have the same access as Dennis Varnau. (Doc. 15 at 9).
In response, defendants argue that Varnau’s motion to quash should be denied because
(1) plaintiff lacks standing to challenge the subpoena issued to Varnau on the ground of undue
burden and the claim of undue burden is unfounded, and (2) the documents defendants seek are
not entitled to protection as attorney work product. (Doc. 18). Defendants argue that Varnau has
not submitted a privilege log as required to describe the content of the information Varnau seeks
to withhold; Varnau has a conflict of interest arising from his involvement in other lawsuits with
defendants that may be impacted by resolution of this case and which “overrides any potential
attorney work product protection”; and Varnau is in actuality functioning as an expert witness so
that the factual material he has considered must be disclosed. (Id. at 6). Defendants further
contend that they have a substantial need for the subpoenaed materials, which they cannot obtain
by other means. (Id. at 7).
The Court held an informal discovery conference on April 4, 2017, and a follow-up
conference on April 10, 2017. (Docs. 19, 21). After the follow-up conference, the Court ordered
the parties to submit briefs on the issues of (1) whether the work product doctrine applies to
Varnau’s conversations and materials, and (2) whether the sequestration of witnesses at the
depositions in this case is warranted. (Doc. 22). In his brief, Varnau reiterates his position that
plaintiff’s counsel consulted him for “information and opinions” regarding Goldson’s death and
that since the time plaintiff filed this lawsuit, he has regularly worked with plaintiff’s counsel “to
analyze information and formulate opinions based on his education, training and experience in

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order to assist them in support of the claims” in this case. (Doc. 24 at 4-5, citing Doc. 24-3,
Varnau Aff., ¶¶ 9, 11, 12). Varnau alleges that “everything arising out of [his] assistance to
Plaintiff’s counsel after June 10, 2015” constitutes “opinion work product” that reflects “the
mental impressions of an attorney.” (Id. at 10). Varnau also alleges that “the information that
[he considered] in preparing additional documents, recordings, both audio and video and
opinions for Plaintiff’s counsel is either public record that Defendant already has in its
possession or arises out of documents provided by Defendants to Plaintiffs in discovery and used
by Mr. Varnau in assisting Plaintiff’s counsel in the current litigation.” (Id.).
Defendants argue in response that the work product doctrine does not apply to Varnau’s
conversations and materials due to Varnau’s alleged conflict of interest, plaintiff’s failure to
submit a privilege log, and defendants’ demonstrated need for the information. (Doc. 26 at 6).
Defendants allege that Varnau has a conflict of interest that arises from his involvement in two
defamation lawsuits filed by defendants and a third case where the Brown County Common
Pleas Court issued an injunction that enjoins the coroner’s office from “any activity whatsoever
concerning the mode, manner and cause of death of Zachary Goldson.” (Id. at 7, citing Dunning
et al v. Varnau, et al., No. 1:14-cv-00932 (S.D. Ohio 2014); Dunning et al. v. Varnau et al., No.
CV 20170146 (Brown Cnty. C.P. Court) 1; Dunning et al. v. Varnau, No. CV 20150001 (Brown
Cnty. C.P. Court, Sept. 8, 2016). Defendants allege that Varnau’s conflict of interest precludes
him from serving as an expert witness in this case and claiming work product protection for his
materials; however, plaintiff has tried to sidestep this barrier by designating Varnau as a
“consultant” when in fact he is a “constructive expert witness” admittedly retained by plaintiff

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Varnau has submitted a copy of an April 7, 2017 Order entered in Case No. CVH20170146, which denies a motion
for preliminary injunction filed by defendants to enjoin Varnau and his wife from publishing certain information
concerning defendants’ activities, specifically a video titled “Zachary Goldson DID NOT hang himself in Jail Cell
15-October 5, 2013.” (Doc. 28, Exh. 2).

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“to analyze evidence and formulate opinions.” (Id. at 7-8, citing Ross v. Am. Red Cross, No.
2:09-CV-905, 2012 WL 2090511, at *1 (S.D. Ohio Jan. 11, 2012), aff’d, 567 F. App’x 296 (6th
Cir. 2014); Sells v. Wamser, 158 F.R.D. 390, 393 (S.D. Ohio 1994); Lippe v. Bairnco Corp., 288
B.R. 678 (S.D.N.Y. 2003), aff’d, 99 F. Appx. 274 (2d Cir. 2004)). Defendants also assert that it
was apparent at the time plaintiff’s counsel retained Varnau that he was actually a fact witness,
so there is no reasonable expectation his communications with counsel would be protected under
the work product doctrine. (Id. at 8, citing Evercare Co. v. 3M Co., No. 1:08 MC 42 (Doc. 13 July 10, 2008 Order) (N.D. Ohio) (McHargh, M.J.)). Defendants allege that plaintiff’s decision
to retain Varnau as a “non-testifying trial consultant . . . is highly suspect” and plaintiff must bear
the consequences of counsel’s ill-advised decision. (Id.).
Defendants further allege that the work product doctrine does not shield Varnau’s
communications and materials because Varnau has not submitted a privilege log, without which
it is impossible to determine whether the withheld information or materials are “facts” that must
be disclosed or “opinions” that may be entitled to protection. (Id. at 8-9). Defendants also
contend they are entitled to the subpoenaed information because they can demonstrate both a
substantial need for it and an inability to obtain the equivalent information from another source
without undue hardship. (Id. at 9-10).
Defendants also argue that Varnau’s “conflict of interest, improper conduct, and lack of
credibility” require his “sequestration,” i.e., limiting Varnau’s “participation in this case to
providing sworn testimony.” (Id. at 1).
In reply, Varnau disputes the premises defendants rely on in support of their motion to
quash. (Doc. 28). Varnau denies he is a fact witness, and he also denies he is an expert witness.
(Id. at 6). Further, Varnau alleges that the information that came out of the investigation he

6

conducted for plaintiff’s counsel has since been provided to defendants so that there is no need
for a privilege log, and defendants can obtain the information they seek through other means
because it either originated from them or is a public record. (Id.). Varnau also seeks to
distinguish the Evercare case by alleging that all information and materials defendants seek
relate directly to Varnau’s work with plaintiff’s counsel; Varnau has satisfied his burden to show
those matters go directly to plaintiff’s counsel’s pre-trial investigation or prosecution of this
lawsuit; there is no need for a privilege log here because all of the subpoenaed materials have
been produced to defendants, they are already in defendants’ possession, or they are readily
accessible public records; and plaintiff has not retained Varnau as a witness and Varnau has not
generated any reports for plaintiff’s counsel. (Doc. 28 at 6-11).
Varnau challenges defendants’ sequestration request on the ground he has done nothing
that would require him to be sequestered. Varnau alleges that an affidavit completed by Tara
Downing in an attempt to support defendants’ sequestration request is not truthful. (Id. at 13).
Varnau also denies that he has a conflict of interest stemming from his association with the
Brown County coroner’s office and that he has been enjoined from engaging in any activity with
respect to Goldson’s death. (Id. at 13-14). Varnau further contends that the authorities on which
defendants rely to support their sequestration request apply only to depositions and trials and do
not permit broader restrictions. (Id. at 12, citing cases).
II. Motion to quash
“On timely motion, the court for the district where compliance is required must quash or
modify a subpoena that [] requires disclosure of privileged or other protected matter, if no
exception or waiver applies[.]” Fed. R. Civ. P. 45(d)(3)(iii). The scope of discovery under a
subpoena is the same as the scope of discovery under Fed. R. Civ. P. 26. Hendricks v. Total

7

Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (citing Barrington v. Mortgage
IT, Inc., No. 07-61304-CIV, 2007 WL 4370647, at *3 (S.D. Fla. Dec. 10, 2007)). Rule 26 states
that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case,” taking into consideration six
factors specified in the Rule. Fed. R. Civ. P. 26(b)(1).
Fed. R. Civ. P. 26(b)(5)(A) provides that a party who withholds information that is
otherwise discoverable “by claiming that the information is privileged or subject to protection as
trial-preparation material” must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed--and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A). The Local Rules of this Court provide:
Any privilege log shall refer to the specific request to which each assertion of
privilege pertains. A privilege log shall list documents withheld in chronological
order, beginning with the oldest document for which a privilege is claimed.
S.D. Ohio Civ. R. 26.1(a). A privilege log must contain sufficient detail to enable the opposing
party and the court to assess whether each element of the asserted privilege or protection is
satisfied. Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio 2010). See also In re Universal
Services Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 673 (D. Kan. 2005).
Fed. R. Civ. P. 26(b)(3) governs work product claims. With certain exceptions, Rule
26(b)(3) protects from disclosure all: (1) “documents and tangible things”; (2) “prepared in
anticipation of litigation or for trial”; (3) “by or for another party or its representative (including

8

the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” 2 Fed. R. Civ. P.
26(b)(3)(A). Under the Federal Rules, the work product protection under Rule 26(b)(3) is not
limited to attorneys but has been extended to documents and tangible things prepared by or for
the party and the party’s representative, as long as such documents were prepared in anticipation
of litigation. Id. See Eversole v. Butler County Sheriff’s Office, No. 1:99-cv-789, 2001 WL
1842461, at *2 (S.D. Ohio Aug. 7, 2001) (“Rule 26(b)(3) is not limited solely to attorneys” and
“documents and things prepared by the party or his agent fall within the work product rule.”)
(citing 8 Wright & Miller, Federal Practice & Procedure, § 2024). Rule 26(b)(3) excludes from
work product protection “[m]aterials assembled in the ordinary course of business, or pursuant to
public requirements unrelated to litigation, or for other nonlitigation purposes.” Rule 26
advisory committee’s note (1970).
“Opinion” work product is entitled to near absolute protection against disclosure, while
“fact” work product may be discoverable upon a showing by a party that it has a substantial need
for the materials to prepare its case and that it cannot, without undue hardship, obtain
substantially equivalent materials by other means. See In re Columbia/HCA Healthcare Corp.
Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002).
Two factors are material to whether a document is protected by the work product doctrine
2

Rule 26(b)(3) provides:
(A) Documents and Tangible Things. Ordinarily, 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). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by
other means.

Fed. R. Civ. P. 26.

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because it was “in anticipation of litigation” or for trial: “(1) whether that document was
prepared ‘because of’ a party’s subjective anticipation of litigation, as contrasted with ordinary
business purpose; and (2) whether that subjective anticipation was objectively reasonable.” In re
Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009) (citing United States v.
Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006)). See also Little Hocking Water Assn., Inc. v. E.I.
Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 607969, at *9 (S.D. Ohio Feb. 19,
2013) (Report and Recommendation), affirmed, 2014 WL 5857994 (S.D. Ohio Nov. 12, 2014) (it
is not sufficient to state that a communication generally relates to litigation to warrant work
product protection; the communication must have been “prepared in anticipation of litigation or
for trial.”). The party resisting disclosure bears the burden of showing that the material was
“prepared in anticipation of litigation or for trial.” Toledo Edison Co. & Cleveland Electric
Illuminating Co. v. G A Technologies, Inc., 847 F.2d 335, 339 (6th Cir. 1988). A party may
satisfy this burden “in any of the traditional ways in which proof is produced in pretrial
proceedings such as affidavits made on personal knowledge, depositions, or answers to
interrogatories,” and the showing “can be opposed or controverted in the same manner.” Id.
“Where an ‘undisputed affidavit . . . is specific and detailed to indicate that the documents were
prepared in anticipation of litigation or trial,’ then the party claiming work product protection has
met its burden.” Roxworthy, 457 F.3d at 597 (quoting Toledo Edison Co., 847 F.2d at 341).
However, courts will reject claims for work product protection “where the ‘only basis’ for the
claim is an affidavit containing ‘conclusory statement[s].’” Id. (quoting Guardsmark, Inc. v.
Blue Cross and Blue Shield of Tenn., 206 F.R.D. 202, 210 (W.D. Tenn. 2002)). Finally, “[i]f a
document is prepared in anticipation of litigation, the fact that it also serves an ordinary business
purpose does not deprive it of protection[.]” In re Professionals Direct Ins. Co., 578 F.3d at 439

10

(quoting Roxworthy, 457 F.3d at 598-99). However, the party seeking protection bears the
burden of showing that “anticipated litigation was the ‘driving force behind the preparation of
each requested document.’” Id. (quoting Roxworthy, 457 F.3d at 595) (stating that such
documents do not lose protection under the work product doctrine “unless the documents ‘would
have been created in essentially similar form irrespective of the litigation’”) (quoting Nat’l
Union Fire Ins. Co. of Pittsburgh v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)).
As an initial matter, defendants have not shown that Varnau lacks standing to challenge
the subpoena issued to him, which he moves to quash on grounds of both undue burden and work
product protection. The authorities defendants cite do not support their position that Varnau
lacks standing to move to quash the subpoena on the ground of undue burden. (See Doc. 18 at 1,
citing Riding Films, Inc. v. John Does 129-193, No. 2:13-CV-46, 2013 WL 3322221, at *4 (S.D.
Ohio July 1, 2013); Donahoo v. Ohio Dept. of Youth Services, 211 F.R.D. 303, 306 (N.D. Ohio
2002)). The courts in these cases concluded that the entity to whom the subpoena is directed is
the only entity with standing to challenge the subpoena. Riding Films, Inc., 2013 WL 3322221,
at *6; Donahoo, 211 F.R.D. at 306. Defendants’ subpoena was directed to Varnau, and he is the
individual with standing to challenge the subpoena.
While Varnau has standing, he has not shown that it would be unduly burdensome to
comply with the subpoena defendants have issued to him. Varnau alleges that the subpoena
imposes an undue burden only because it requests information that is either a public record or is
already in defendants’ possession. (Doc. 15 at 1, 9). It is impossible to evaluate Varnau’s
contention because he has not identified the information or materials that are responsive to
defendants’ subpoena, and he has not disclosed which of those documents have already been
provided to defendants or are otherwise in their possession. Varnau’s vague allegations, which

11

are lacking in any such specifics, are insufficient to support a finding that the subpoena issued to
him is unduly burdensome.
In addition, the Court finds that Varnau has not carried his burden to show that the
information defendants seek through the Rule 45 subpoena is protected under the work product
doctrine. Varnau generally states that “all” of the information defendants seek is work product
simply because the information was gathered in connection with counsel’s pre-suit investigation
and during the course of the litigation. (Doc. 24 at 12). However, Varnau has not presented
proof such as “affidavits made on personal knowledge, depositions, or answers to
interrogatories” that are sufficiently “specific and detailed to indicate that the documents were
prepared in anticipation of litigation or trial. . . .” Roxworthy, 457 F.3d at 597 (quoting Toledo
Edison Co., 847 F.2d at 341). Instead, the “‘only basis’ for the claim [of protection under the
work-product doctrine] is an affidavit containing ‘conclusory statement[s]’,” which does not
suffice to establish the claim. Id. (quoting Guardsmark, Inc., 206 F.R.D. at 210). Moreover, it
appears that at least some of the information for which Varnau claims work product protection is
factual information. It is highly likely that Varnau will be a fact witness in this case given his
work as a volunteer assistant to his wife, Dr. Judith Varnau, at the time of Goldson’s death and
during the ensuing inquiry into the cause of death. Relevant factual information Varnau may
have learned while working as an unpaid assistant to the Brown County coroner and then shared
with counsel would not be entitled to work product protection.
It is possible that certain materials defendants seek from Varnau are work product and are
entitled to protection from disclosure. However, it is impossible to make this determination
based on Varnau’s submissions, which do not describe the information and materials in question
with any specificity. Accordingly, the Court will reserve ruling on the motion to quash pending

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(1) Varnau’s submission to defendants and the Court of a privilege log that identifies the
subpoenaed materials for which Varnau claims work product protection and that provides the
required information, and (2) submission of the documents to the undersigned for in camera
review. The privilege log must contain sufficient detail to enable defendants and the Court to
assess whether each element of the work product doctrine is satisfied. See Cooey, 269 F.R.D. at
649; In re Universal Services Fund Tel. Billing Practices Litig., 232 F.R.D. at 673. If Varnau
fails to establish that any information or material is entitled to work product protection, he will
be required to produce it to defendants pursuant to the Rule 45 subpoena.
III. Sequestration request
Defendants argue that Varnau’s “conflict of interest, improper conduct, and lack of
credibility demands [sic] his sequestration in the underlying litigation.” (Doc. 26 at 1).
Defendants allege that Varnau’s conflict of interest arises from (1) the injunction issued by the
Brown County Common Pleas Court that purportedly enjoined Varnau from engaging in any
activity related to the mode, manner and cause of Goldson’s death, and (2) a vested interest
Varnau has in the outcome of this case given that he and his wife are named as defendants in two
defamation lawsuits that may be impacted by the resolution of this case. (Id. at 7). Defendants
note that courts have the authority under Fed. R. Evid. 615 to sequester witnesses at trial to
prevent them from hearing other witnesses’ testimony and that the Court may limit attendance at
depositions “for good cause” under Fed. R. Civ. P. 26(c)(1)(E). (Id. at 4, citing cases).
Defendants allege that sequestration is particularly warranted here because Varnau has been
involved as both a consultant and fact witness so that his credibility is critically important;
Varnau’s testimony in the case of Dunning, et al. v. Varnau, Brown County C.P. Court No.
2015-0001 has purportedly been called into question by deposition testimony provided by

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Goldson’s mother; Varnau’s assertion that his role at the coroner’s office was limited to
administrative tasks is of dubious validity; and Varnau’s tasks of analyzing evidence and
formulating opinions for plaintiff’s counsel suggest he is serving as an expert witness but has
never been disclosed as one. (Id. at 4-5). Varnau argues that defendants have not cited any
authority that shows the Court can preclude him from speaking with plaintiff’s counsel and
assisting with the investigation of plaintiff’s case. (Doc. 28 at 12-13).
The Court will grant defendants’ request to sequester Varnau to the extent defendants
seek to preclude him from attending the other depositions in this case. The Court has the
authority to exclude witnesses from depositions pursuant to Rule 26(c), which provides in part:
“The court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more of the following:
(E) designating the persons who may be present while the discovery is conducted[.]” Stone v.
City of Grand Junction, Tenn., No. 1:10-CV-01088, 2010 WL 4569073, at *1 (W.D. Tenn. Nov.
4, 2010) (citing Fed. R. Civ. P. 26(c)(1)(E)); In re Air Crash at Lexington, Ky., August 27, 2006,
No. 5:06-CV-316, 2008 WL 170510, at *2 (E.D. Ky. Jan. 17, 2008) (same). There is good cause
for restricting Varnau from attending the depositions of other parties and witnesses in this matter.
There is no question that Varnau has a vested interest in the testimony provided in this case and
in the outcome of this lawsuit due to his involvement in other lawsuits filed in connection with
Goldson’s death. While Varnau’s interest may not be enough standing alone to constitute “good
cause” for sequestering him from the depositions, the standard is met when this fact is considered
together with the other unusual circumstances of this case. It is apparent from the filings that the
parties, counsel, and Varnau have an extensive and contentious history of interactions, many of
which center around Goldson’s death and the finding by Brown County coroner Dr. Varnau,

14

Varnau’s wife, that the cause of death was homicide by strangulation. Although Varnau
represents he has been retained by plaintiff’s counsel as an investigator to gather information and
provide analysis and opinions, Varnau will almost certainly be called as a fact witness in this
case based on his access to relevant information while serving as a volunteer assistant to the
Brown County coroner. Varnau’s interest in the outcome of this case, coupled with the history
of the parties’ legal filings and Varnau’s dual role as an investigator and fact witness, constitute
good cause to exclude Varnau from the depositions in this matter.
The Court will deny defendants’ request for sequestration insofar as they seek to go
beyond excluding Varnau from the depositions in this matter and limit his participation to
providing sworn testimony at his deposition and at trial. Defendants have not produced evidence
that shows Varnau himself has been enjoined by any court from assisting plaintiff’s counsel in
this litigation. Moreover, the cases defendants cite do not indicate that the Court has the
authority to restrict Varnau from participating in the litigation in any capacity other than as a
witness. See United States v. Rugiero, 20 F.3d 1387, 1392 (6th Cir. 1994) (citing United States
v. Gibson, 675 F.2d 825, 835 (6th Cir. 1982) (addressing sequestration of witnesses in the
courtroom to prevent coaching or influencing another witness’ testimony); Geders v. United
States, 425 U.S. 80, 87 (1976) (a judge has power to sequester witnesses during course of trial);
Morvant v. Construction Aggregates Corp., 570 F.2d 626, 629 (6th Cir. 1978) (issue was
whether trial judge erred in excluding expert from the courtroom)). Accordingly, the Court will
deny defendants’ request to limit Varnau’s participation to the extent they request anything
beyond sequestration at the depositions.

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IT IS THEREFORE ORDERED THAT:
(1) The Court reserves ruling on nonparty Dennis Varnau’s motion to quash (Doc. 15) pending:
•

Submission to defendants and the Court of a privilege log that identifies the materials
requested in the subpoena for which Varnau claims work product protection and provides
the required information for those materials within 20 days of the date of this Order; and,

•

Submission of the documents identified in the privilege log to the undersigned for in
camera review within 20 days of the date of this Order.

(2) Defendants’ request for sequestration is GRANTED only insofar as it relates to depositions
in this matter. Nonparty Dennis Varnau shall not attend the deposition of any other witness or
any party in this lawsuit.

Date: May 26, 2017

Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

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