Alomari v. Ohio Department of Public Safety et al
Filing
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OPINION AND ORDER denying 33 Plaintiff's Request to Compel testimony related to the April 2010 Conference with counsel. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/21/2013. (er)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OMAR ALOMARI,
Plaintiff,
Civil Action 2:11-cv-00613
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
v.
OHIO DEPARTMENT OF
PUBLIC SAFETY, et al.,
Defendants.
DISCOVERY OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion to Compel
Discovery. (ECF No. 33.) Defendants filed their Response in Opposition to Plaintiff’s Motion
on August 2, 2013. (ECF No. 34.) Pursuant to this Court’s July 26, 2013 Order, Plaintiff was
prohibited from filing a Reply brief. For the reasons that follow, with respect to one of the three
issues Plaintiff raises, Plaintiff’s Motion is DENIED. The Court defers ruling on the two
remaining issues until the parties submit additional materials, as set forth herein.
I.
Plaintiff is a former employee of the Ohio Homeland Security (“OHS”), a division of the
Ohio Department of Public Safety (“ODPS”). He alleges that ODPS terminated him in June
2010 because of his race, national origin, ethnicity, and religion, and in retaliation for opposing
anti-Muslim and anti-Arab counterterrorism training. (Compl. ¶ 1, ECF No. 2.)
Plaintiff, an Arab and Muslim, immigrated to this country in 1978. In 2005, Defendants
hired him to serve as a liaison between OHS and the Muslim communities and to build
relationships between OHS, law enforcement and the local Arab and Muslim population.
According to the Complaint, Plaintiff also researched and authored publications on Arab and
Muslim communities and presented educational information to law enforcement on behalf of
OHS concerning cultural issues.
Plaintiff alleges that in November 2008, OHS held a training session for its terrorismliaison officers. Id. at ¶ 18. Concerned about the way in which the training characterized Arabs
and Muslims, Plaintiff informed the Director of OHS that the purported anti-Muslim and antiArab contents of the training session undermined OHS’ efforts to build and maintain
relationships with the Arab and Muslim communities. Plaintiff contends that OHS held similar
anti-Muslim and anti-Arab training session throughout 2009. He alleges that he continued to
voice concern to the Director of OHS regarding the purported mischaracterization of all Central
Ohio Muslims and Arabs as terrorists or terrorism-sympathizers. Id. at ¶ 22. Plaintiff represents
that his photograph was shown during one of the training session as an example of a terrorismsympathizer. In addition to expressing concern to the Director of OHS, Plaintiff alleges that he
contacted the Office of Civil Rights and Civil Liberties and the United States Department of
Homeland Security to report the inaccuracies the training sessions portrayed. According to
Plaintiff, Defendants ultimately terminated him on pretext but that the true reason was retaliation
for his complaints, and because of unfounded media and other inquiries suggesting that Plaintiff
might be a terrorism-sympathizer.
Defendants assert that ODPS terminated Plaintiff because he intentionally withheld from
his employment application a position he held at Columbus State Community College
(“Columbus State”). Plaintiff’s employment at Columbus State allegedly ended following an
inappropriate relationship he shared with a female student. The parties indicate that in 2010
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various media outlets began to inquire of OHS and ODPS concerning Plaintiff’s departure from
Columbus State and his failure to list the position on his employment application. In April 2010,
ODPS prompted an administrative investigation into the circumstances surrounding Plaintiff’s
departure from Columbus State and his failure to disclose the position on his employment
application. The investigator, Kathleen Bourke-Botos, ultimately concluded that Plaintiff failed
to provide accurate information on his employment application. Defendants contend that they
relied on the results of the investigation in deciding to terminate Plaintiff.
In the instant Motion, Plaintiff seeks an Order compelling testimony related to two
meetings leading up to his termination that were held with ODPS’ in-house counsel. He also
seeks to depose ODPS’ in-house counsel concerning their role in providing materials to the
administrative investigator. He asserts that this information will prove that Defendants’ stated
reason for terminating him is a pretext for discrimination and retaliation. Defendants oppose
Plaintiff’s requests, primarily on the grounds of attorney-client privilege.
II.
A.
Standard for Attorney-Client Privilege
The attorney-client privilege is recognized as the oldest privilege relating to confidential
communications. Upjohn v. United States, 449 U.S. 383, 389 (1981). Its purpose is to
“encourage full and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration of justice. Id. In
Upjohn, the United States Supreme Court explored the contours of the attorney-client privilege
as it relates to corporate employees. 449 U.S. at 386-97. In rejecting the “control group test,”
the Supreme Court emphasized that “the privilege exists to protect not only the giving of legal
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advice to those who can act on it but also the giving of information to the lawyer to enable him
[or her] to give sound and informed advice.” Id. at 390. As the Supreme Court recognized,
“[t]he first step in the resolution of any legal problem is ascertaining the factual background and
sifting through the facts with an eye to the legally relevant.” Id. at 390-91. In light of Upjohn,
“it is now well settled that private corporations and other organizations may constitute clients for
purposes of the attorney-client privilege.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998).
The Sixth Circuit Court of Appeals articulated the following test to determine whether a
communication is privileged: “(1) where legal advice of any kind is sought (2) from a
professional legal adviser in his [or her] capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his [or her] insistence permanently
protected (7) from disclosure by himself [or herself] or by the legal advisor, (8) unless the
protection is waived.” Reed, 134 F.3d at 355-56 (citing Fausek v. White, 965 F.2d 126, 129 (6th
Cir. 1992)).
In addition, “the mere fact that in-house counsel is present at a meeting does not shield
otherwise unprivileged communications from disclosure.” Neuder v. Battelle Pac. Nw Nat’l
Lab., 194 F.R.D. 289, 293 (D.D.C. 2000). Rather, the attorney-client privilege “applies only to
communications made to an attorney in his capacity as legal advisor.” Id. at 292. “Where
business and legal advice are intertwined, the legal advice must predominate for the
communication to be protected.” Id. at 292. In determining whether communications made in
counsel’s presence are privileged, courts have considered whether counsel serves dual roles for
the corporation. Naik v. Boehringer-Ingelheim Pharm., Inc., No. 07-c-3500, 2008 WL 4866015,
*2 (N.D. Ill June 19, 2008) (concluding that communications were not privileged, partly because
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“there is no suggestion that BIPI’s in-house counsel was serving on a committee charged with
considering employment issues”).
Furthermore, “[t]he burden of establishing the existence of the privilege rests with the
person asserting it.” United States v. Dakota, 188 F.3d 663, 667 (6th Cir. 1999). Simply
asserting that information is privileged “is insufficient to meet the burden.” In re Trans-Indus.,
No. 1-10 MC 24, 2011 WL 1130410, *4 (N.D. Ohio Mar. 28, 2011). Rule 26 of the Federal
Rules of Civil Procedure requires a party who seeks to withhold otherwise discoverable
information on the basis of privilege to assert a claim of privilege and “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 to the other
parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); see also Cooey v. Strickland, 269
F.R.D. 643, 649 (S.D. Ohio 2010) (citing In re Search Warrant Executed at Law Offices of
Stephen Garea, No. 97-4112, 1999 WL 137499 (6th Cir. Mar. 5, 1999) (“The privilege log must
be detailed enough to prove that the communications in question were in fact confidential
communications relating to legal advice.”). Here, Plaintiff seeks an Order compelling testimony
concerning discussions that occurred at two meetings where ODPS’ counsel was present.
B.
April 2010 Meeting
Plaintiff first seeks to compel testimony concerning communications from an April 2010
meeting at which he was present along with his supervisor and ODPS’ counsel. (Mot. 4, ECF
No. 33.) The purpose of the meeting, according to Plaintiff, was to determine how to respond to
media inquiries related to his departure from Columbus State and his failure to include
Columbus State on his employment application. Plaintiff posits that the attorney-client privilege
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does not protect discussions that occurred during the meeting because its purpose was to discuss
media inquiries, not solicit or render legal advice. Even if the purpose was to solicit or render
legal advice, Plaintiff asserts that the privilege nevertheless fails to attach because he did not
know that the meeting was called for such purpose, as Upjohn requires.
The Court disagrees. First, as Defendants point out, the record demonstrates that the
purpose of the April 2010 meeting was for counsel to ask Plaintiff questions so that she could
advise ODPS how to respond to the media inquiries. Plaintiff testified that counsel and his
supervisor “really wanted to ask questions and prepare a response to the [media inquiries].”
(Alomari Dep. 167:3-5, Mot. Ex. 1, ECF No. 33-1.) Plaintiff’s supervisor testified that it was
apparent from the media inquires that “this was enough of an issue that we need to – or he needs
to consult with legal and go from there.” (Vedra Dep. 50:2-4, Op. Ex. 2, ECF No. 34-2.)
Second, Plaintiff’s testimony indicates that he was sufficiently aware that the purpose of the
meeting was to provide information to counsel for this purpose. He testified that counsel
explained the media inquiries to him, and stated that she wanted to understand the underlying
circumstances to determine how to respond. (Alomari Dep. 166:18-167:5, Mot. Ex. 1, ECF No.
33-1.) Accordingly, Plaintiff’s request to compel testimony related to the April 2010 meeting is
DENIED.
C.
June 2010 Meeting
Plaintiff next seeks an Order compelling testimony as to discussions from a June 2010
meeting that the then-director of ODPS called apparently to determine how to proceed in light of
the results of the administrative investigation of Plaintiff. In addition to the director, the
Assistant Director of ODPS, a member of human resources, a member of administration,
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Plaintiff’s supervisor, the deputy chief of staff of public safety, and ODPS legal counsel attended
the meeting. (Vedra Dep. 53:15-23, Op. Ex. 2, ECF No. 34-2.) Plaintiff’s supervisor testified
that during the meeting they reached a “consensus or [] decision” to terminate Plaintiff. Id. at
57:19-23. Plaintiff seeks to discover how those in attendance reached the decision to terminate
him, and maintains that the mere presence of counsel is insufficient to trigger the attorney-client
privilege.
The record contains insufficient information for the Court to determine whether the
attorney-client privilege protects discussions that occurred at the June 2010 meeting. As
discussed above, “the mere fact that in-house counsel is present at a meeting does not shield
otherwise unprivileged communications from disclosure.” Neuder, 194 F.R.D. at 293; see also
Curtis v. Alcoa, Inc., No. 3:06-cv-448, 2009 WL 838232, *2 (E.D. Tenn. March 27, 2009)
(holding communications at meetings attended by attorneys not automatically privileged).
Rather, the attorney-client privilege “applies only to communications made to an attorney in his
capacity as legal advisor.” Id. at 292. “Where business and legal advice are intertwined, the
legal advice must predominate for the communication to be protected.” Id. at 292. In
determining whether communications made in counsel’s presence are privileged, courts have
considered whether counsel serves dual roles for the corporation. Naik, 2008 WL 4866015 at *2
(concluding that communications were not privileged, partly because “there is no suggestion that
BIPI’s in-house counsel was serving on a committee charged with considering employment
issues”).
Here, although Plaintiff asserts that the purpose of the meeting was to discuss the results
of the investigation, neither party has supplied evidence of the actual substance of the June 2010
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communications. The Court is thus unable to determine whether the relevant discussions were
made to counsel in her capacity as legal advisor, or whether legal advice predominated among
legal discussions intertwined with business communications. Recognizing that Defendants carry
the burden of demonstrating privilege, and in the interest of justice, Defendants are DIRECTED
to submit for in camera inspection an affidavit setting forth the substance of the June 2010
communications, focusing on the communications and the role of in-house counsel, WITHIN
SEVEN (7) DAYS OF THE DATE OF THIS ORDER. The Court will then determine
whether the privilege applies to the communications.
III.
Finally, Plaintiff seeks to depose three lawyers who served as in-house counsel for ODPS
at the time of the administrative investigation.1 According to Plaintiff, the three lawyers in
question acquired documents from Columbus State to provide to the administrative investigator,
Bourke-Botos. Columbus State purportedly provided a hand-written settlement agreement to
counsel reflecting that Plaintiff was permitted to resign from his position. Bourke-Botos,
1
The Court notes that Plaintiff did not present this as an issue during the judicial
conference that led the Court to impose the briefing schedule on the issues discussed above. See
July 22, 2013 Order and July 26, 2013 Order, ECF Nos. 30 and 32 (expediting briefing on the
attorney-client privilege issues set forth above). Nor did Plaintiff otherwise indicate to or
request permission from the Court to include this issue for consideration with the issues
addressed in the prior Orders. Moreover, Plaintiff apparently failed to comport with his duty
under Local Rule 37.1 to consult with opposing counsel prior to filing motions on a discovery
dispute. S.D. Ohio Civ. R. 37.1; see generally Mot., ECF No. 33 (containing no indication that
Plaintiff complied with his obligation under Rule 37.1); Op. 9, ECF No. 34 (indicating that
Plaintiff failed to consult with defense counsel on this issue). Nevertheless, in the interest of
justice and in an effort to avoid penalizing Plaintiff for what appears to be his counsel’s
missteps, the Court will consider Plaintiff’s request to compel the depositions of ODPS’ counsel.
Counsel are still encouraged to negotiate on the issue and to determine whether Plaintiff may
obtain the information he seeks short of deposing counsel.
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however, never received that agreement. Relying on other documents that counsel provided,
Bourke-Botos ultimately concluded that Plaintiff lied when he stated that he resigned from
Columbus State. In the instant Motion, Plaintiff seeks to depose ODPS counsel to determine
why they failed to provide the purportedly exculpatory settlement agreement to Bourke-Botos.
Plaintiff identifies the “Faragher-Ellerth” affirmative defense in supports of his position.
(Mot. 16, ECF No. 33.) The Faragher-Ellerth defense permits an employer defending a hostile
work environment claim to assert that it exercised reasonable care to prevent and correct
discriminatory behavior. Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775 (1998). In doing so, the employer waives any privilege that would
otherwise protect documents related to the adequacy of the investigation, including documents
reflecting its efforts to prevent and correct the discrimination. McKenna v. Nestle Purina
PetCare Co., No. 2:05-cv-976, 2007 WL 433291, at *4 (S.D. Ohio Feb. 5, 2007). In the absence
of any allegation of a failure to investigate, the Faragher-Ellerth defense neither applies nor is
helpful in this case.
The appropriate inquiry, which neither party identified in their briefing, is whether the
three-prong test applies that the Eighth Circuit crafted in Shelton v. American Motors Corp., 805
F.2d 1323 (8th Cir. 1986). The analysis begins with recognition that the Federal Rules of Civil
Procedure generously permit discovery “regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . .” Fed. R. Civ. P. 26(b)(1). Consistent with the Rules’ liberal
stance on discovery, Fed. R. Civ. P. 30(a)(1) provides that: “[a] party may, by oral questions,
depose any person, including a party, without leave of court . . . .” (emphasis added). The Sixth
Circuit has adopted the three-part test articulated in Shelton, limiting this presumption of
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openness in discovery in instances when the deponent is opposing trial/litigation counsel:
Discovery from an opposing counsel is “limited to where the party seeking to take
the deposition has shown that (1) no other means exist to obtain the information . .
. ; (2) the information sought is relevant and nonprivileged; and (3) the information
is crucial to the preparation of the case.”
Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002) (quoting Shelton,
805 F.2d at 1327 (citation omitted)).
In Shelton, parents of a child who died as a result of a rollover accident brought suit
against an automobile manufacturer. 805 F.2d at 1324. Plaintiff sought to depose opposing trial
counsel about her discovery preparation for that case, namely, about the existence of certain
documents possessed by counsel’s client. Id. at 1326. Plaintiff’s counsel admitted that his sole
purpose in deposing opposing counsel was to determine whether opposing counsel had truthfully
complied with his written discovery. Id. at 1327-28. It was against this backdrop that the
Shelton court crafted the three-part test to be satisfied prior to a deposition of opposing trial
counsel. Notably, prior to setting forth the three-part test, the Shelton court declared: “We do not
hold that trial counsel is absolutely immune from being deposed. We recognize that
circumstances may arise in which the court should order the taking of opposing counsel’s
deposition.” Id. at 1327. Further, in concluding that opposing counsel could not be deposed
under the circumstances presented in that action, the Shelton court specifically noted that: “[i]nhouse counsel in this case had nothing to do with this lawsuit except to represent her client.”
805 F.2d at 1330.
The Eighth Circuit revisited this issue in Pamida, Inc. v. E.S. Originals, 281 F.3d 726
(8th Cir. 2002). Pamida involved a suit against a manufacturer seeking indemnification for
attorney’s fees and costs incurred in defending an underlying, completed patent infringement
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suit. 281 F.3d at 728. The Pamida Court identified the principle rationales driving Shelton:
The Shelton test was intend [sic] to protect against the ills of deposing opposing
counsel in a pending case which could potentially lead to the disclosure of the
attorney's litigation strategy. Because this abuse of the discovery process had
become an ever increasing practice, this Court erected the Shelton test as a barrier
to protect trial attorneys from these depositions. But Shelton was not intended to
provide heightened protection to attorneys who represented a client in a completed
case and then also happened to represent that same client in a pending case where the
information known only by the attorneys regarding the prior concluded case was
crucial. In such circumstances, the protection Shelton provides to opposing counsel
only applies because opposing counsel is counsel in the instant case and not because
opposing counsel had represented the client in the concluded case.
Id. at 730-31 (citations omitted) (emphasis added). Thus, Padima suggests that Shelton only
applies when: (1) the deponent is either trial/litigation counsel in the instant case; and (2) the
information sought would expose litigation strategy in the pending case. See id.
Like the Padima court, other courts presented with similar requests to extend Shelton
have decline to do so. See, e.g., Williams v. Wellston City Sch. Dist., No. 2:09-cv-566, 2010 WL
4513818, * (S.D. Ohio Nov. 2, 2010) (declining to extend Shelton to situations in which the
proposed deponent is in-house counsel who had not served as counsel in the subject litigation);
Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., 2008 WL 199709, *3 (W.D. Tenn.
January 23, 2008) (finding Shelton inapplicable where proposed deponent was the prosecuting
attorney of the patent-in-suit, but was not litigation counsel in the instant action and where there
was no contention that allowing his deposition to be taken would divulge any litigation strategy);
El Bannan v. Yonts, 2007 WL 1428653, *6 (W.D. Ky. May 11, 2007) (declining to apply the
Shelton test where it was unclear whether the proposed attorney deponent was a member of the
Defendant’s legal team and where the court determined that the proposed deponent “may have
knowledge of certain facts outside the scope of legal representation related to the case”); and
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United States v. Philip Morris, Inc., 209 F.R.D. 13, 15 and 19 (D.D.C. 2002) (declining to
extend Shelton where the proposed deponents were the opposing party’s in-house counsel, but
were not trial counsel in the instant action and where the information sought was non-privileged
and relating to “‘public relations,’ ‘corporate conduct and positions,’ marketing strategies,
tobacco research and development, and the Master Settlement Agreement”).
In light of the foregoing, the parties are DIRECTED to brief (1) whether Shelton applies;
and (2) if so, what the outcome is here under the Shelton analysis WITHIN SEVEN (7) DAYS
OF THE DATE OF THIS ORDER. In light of the upcoming discovery cutoff deadline, there
will be no memoranda in opposition or reply briefs.
IV.
Accordingly, Plaintiff’s request to compel testimony related to the April 2010 conference
with counsel is DENIED. (EF No. 33.) With respect to the remaining two issues, Defendants
are DIRECTED to submit for in camera inspection an affidavit setting forth in detail the
substance of the communications of the June 2010 meeting, focusing on the communications and
the role of in-house counsel, and the parties are DIRECTED to brief the issues of whether (1)
Shelton applies to Plaintiff’s request to depose ODPS’ counsel and (2) if so, what the outcome is
under the Shelton analysis, WITHIN SEVEN (7) DAYS OF THE DATE OF THIS ORDER.
In light of the upcoming discovery deadline, no memoranda in opposition or reply briefs will be
permitted.
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IT IS SO ORDERED.
Date: August 21, 2013
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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