Bard v. Brown County et al
ORDER Overruling 50 Objections to Magistrate Judge's July 21, 2017 Order. Signed by Judge Susan J. Dlott on 10/11/17. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Ashley Bard, individually and as the
administrator for the Estate of Zachary
Brown County, et al.,
Case No. 1:15-cv-643
Judge Susan J. Dlott
Order Overruling Objections and
Affirming the Magistrate Judge’s
July 21, 2017 Order
This matter is before the Court on the July 21, 2017 Order (Doc. 40) issued by Magistrate
Judge Karen L. Litkovitz and Defendants’ Objections (Doc. 50) thereto. This dispute arose
when Defendants issued a Subpoena (Doc. 15-1) to Dennis Varnau, Plaintiff’s litigation
consultant, and Plaintiff moved to quash it based on the work product doctrine. (Doc. 15.)
Defendants assert that Varnau is a potential fact witness subject to discovery because he served
as a volunteer administrative assistant to Dr. Judith Varnau, his wife and the coroner who
determined that Zachary Ryan Goldson’s death was a homicide. Defendants also assert that
Varnau is a potential testifying expert witness subject to discovery because he has training in
law, engineering, and police work. The factual background of this case is set forth in more detail
in the Magistrate Judge’s July 21, 2017 Order and May 26, 2017 Order (Doc. 30).
In her May 26, 2017 Order, the Magistrate Judge reserved ruling on the Motion to Quash,
ordered Plaintiff to submit a privilege log to Defendants, and ordered Plaintiff to submit the
privilege log and copies of the documents responsive to the Subpoena to her for an in camera
review. (Id. at PageID 290.) Plaintiff complied. Following the in camera review, the
Magistrate Judge held in the July 21, 2017 Order that although Defendants have the right to seek
discovery from Varnau about the underlying facts of this case, the responsive documents are not
discoverable because they are protected by the work product doctrine. (Doc. 40 at PageID 337.)
Defendants now object to that latter Order. The Court has considered the Order, Defendants’
Objections, Plaintiff’s Response (Doc. 51), the privilege log, and the responsive documents. For
the reasons that follow, the Court will OVERRULE the Objections and AFFIRM the Order.
STANDARD OF LAW
Rule 72(a) of the Federal Rules of Civil Procedure authorizes magistrate judges to decide
nondispositive matters which have been referred to them. If a party timely files objections to a
magistrate judge’s decision on a nondispositive matter, the district judge must “modify or set
aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
The clearly erroneous standard applies to a magistrate judge’s findings of fact, and the contrary
to law standard applies to her conclusions of law. See Gandee v. Glaser, 785 F. Supp. 684, 686
(S.D. Ohio 1992), aff’d, No. 92-3304, 1994 WL 83265 (6th Cir. Mar. 14, 1994). “A finding is
clearly erroneous where it is against the clear weight of the evidence or where the court is of the
definite and firm conviction that a mistake has been made.” Galbraith v. N. Telecom, Inc., 944
F.2d 275, 281 (6th Cir. 1991), overruled on other grounds, Kline v. Tenn. Valley Auth., 128 F.3d
337 (6th Cir. 1997); see also Hood v. Midwest Sav. Bank, No. C2-97-218, 2001 WL 327723, at
*2 (S.D. Ohio Mar. 22, 2001) (same). A decision is contrary to law if the magistrate has ignored
or misapplied the applicable law found in the Constitution, statutes, or case precedent. See
Gandee, 785 F. Supp. at 686; Hood, 2001 WL 327723, at *2.
The Magistrate Judge set forth the standards of law governing discovery and the work
product doctrine. Defendants do not raise any specific objections to her statement of the
governing law. Moreover, the Court agrees with the Magistrate Judge’s conclusions that the
privilege log is sufficient and the responsive documents are entitled to work product protection
under the governing standards. Defendants’ objections that the privilege log lacks specificity do
not withstand scrutiny. Plaintiff has identified on the privilege log the date of the document, the
sender, the recipient, the type of document, and a summary of the substance of document. This
information is sufficient to establish that the responsive documents are protected by the work
product privilege, especially when considered in conjunction with the Court’s in camera review
of the responsive documents.
Defendants next object that the responsive documents are not entitled to work product
protection because Varnau has a dual role of being Plaintiff’s litigation consultant and a likely
fact witness. However, Defendants do not cite to any binding, on-point precedent holding that
the work product doctrine does not apply in such circumstances.
Defendants lastly object that the Magistrate Judge should have found that Varnau will be
a testifying expert for Plaintiff, and then should have held that the responsive documents are
discoverable “facts or data” considered by a testifying expert pursuant to Federal Rule of Civil
Procedure 26(a)(2)(B)(ii). However, Plaintiff has not identified Varnau as a testifying expert
witness, and Defendants offer no evidence that Plaintiff will do so. The responsive documents
reviewed in camera by the Court do not suggest that Varnau will testify as an expert witness. As
such, the responsive documents are not discoverable under Rule 26(a)(2)(B)(ii).
In sum, Defendants have not established that the Magistrate Judge made any clearly
erroneous findings of fact or contrary to law conclusions of law in the Order.
For the foregoing reasons, Defendants’ Objections (Doc. 50) are OVERRULED and the
July 21, 2017 Order (Doc. 40) is AFFIRMED.
IT IS SO ORDERED.
Dated this 10th day of October, 2017.
BY THE COURT:
S/Susan J. Dlott___________
Susan J. Dlott
United States District Judge
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