Kirkland v. Environmental Landscape, LLC et al

Filing 31

ORDER on mediation binders. The Court ORDERS ELL, within three days of the date of this Order, to submit to the Court for an in camera review its set of the Kirkland mediation binders. The Court then will determine if the mediation binders in whole or in partand any paper or digital copies thereofshould be returned to Kirkland, shredded or destroyed, or retained by ELL. Signed by Judge Susan J. Dlott on 11/13/2023. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Macy Kirkland,
Case No. I:22-cv-4I4

Plaintiff/Counterclaim Defendant,
Judge Susan J. DIott
V.

Order on Mediation Binders

Environmental Landscape, LLC,etai,
Defendants/Counterclaim
Plaintiffs.

This matter is before the Court on the parties' cross-briefs on the issue ofPlaintiff Macy
Kirkland's mediation binders. (Docs. 29,30.) Kirkland requests the Court to order Defendant
Environmental Landscape, LLC("ELL")to return to her binders she prepared and submitted to

ELL for purposes of mediation. The mediation binders are composed ofbates-stamped
documents that were already produced in discovery. However,they were organized, annotated,

and highlighted in such as manner as to illustrate how Kirkland intends to prove each aspect of
her claims and the amount ofdamages. (Doc. 29 at PagelD 824; Doc. 29-1 at PagelD 892-896,
898-899.) Moreover, the covers and the detailed table ofcontents ofthe mediation binders were

marked "For Mediation Purposes Only, Subject to Evid. R.408." (Doc. 29-1 at PagelD 892896.)

ELL opposes retum ofthe binders in part because Kirkland purportedly waived any work
product privilege by sharing the mediation binders voluntarily and without stating that she would
expect their retum at the conclusion ofthe mediation. The Court finds this argument to be an

insufficient basis for ELL to retain the binders. To the extent that Kirkland waived the privilege
by sharing the mediation binders, she explicitly did so only for purposes of mediation. The

mediation bindere and the work product contained therein were not produced in the normal
course ofdiscovery for all purposes. If this were ELL's only argument, the Court would have no
hesitation ordering ELL to return the mediation binders to Kirkland.

However. ELL also opposes having to return the mediation binders to Kirkland because

"defense counsel annotated the binders' content in order to prepare for the mediation and any
subsequent proceedings in this matter." (Doc. 30-1 at PagclD 910.) ELL contends, therefore,
that Kirkland's mediation binders now contain its own protected work product. ELL does not
provide information from which the Court can determine if the annotations were substantive nor

did it state how many pages contain annotations. All the Court can say with certainty at this
point is that Kirkland should not be able to obtain ELL's work product—the ELL defense

counsel annotations—any more than ELL should be permitted to retain Kirkland's work product.
Accordingly, the Court ORDERS ELL, within three days of the date of this Order, to
submit to the Court for an in camera review its set ofthe Kirkland mediation binders. The Court

then will detennine if the mediation binders in whole or in part—and any paper or digital copies
thereof—should be returned to Kirkland, shredded or destroyed, or retained by ELL.
IT IS SO ORDERED.
BY THE COURT;

Susan J. DIott

TT

United States Distric^Judge