Libertarian Party of Ohio et al v. Husted

Filing 162

ORDER granting 130 Motion to Compel. Within three business days, Mr. Felsoci shall produce at least one document responsive to the request which asks for documents revealing the name of the Unidentified Client.Signed by Magistrate Judge Terence P Kemp on 8/12/2014. (Kemp, Terence)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Libertarian Party of Ohio,
et al.,
Plaintiffs,
v.

:
:
:

Jon Husted, et al.,
Defendants.

Case No. 2:13-cv-953

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:
OPINION AND ORDER

This Opinion and Order is intended to be read in conjunction
with the Court’s July 30, 2014 Opinion and Order (Doc. 157).

The

Court will not repeat the factual background contained in that
order other than to say that this case involves a challenge to
the Ohio Secretary of State’s decision upholding a protest to
certain nominating petitions filed by Charlie Earl, the
Libertarian Party candidate for Governor of Ohio.

The protest

was filed by Libertarian Party member and Defendant-Intervenor
Gregory Felsoci, whose attorneys fees are being paid by someone
described by his counsel as the “Unidentified Client.”

Because

the protest succeeded, Mr. Earl is not currently eligible to be
listed on the ballot for November’s general election as the
Libertarian Party’s gubernatorial candidate.
Plaintiffs have filed a motion to compel production of any
documents in Mr. Felsoci’s possession, custody, or control which
would identify the Unidentified Client.

In the July 30, 2014

Opinion and Order, the Court listed a number of issues which were
not fully addressed by the briefs filed in support of and in
opposition to the motion to compel.

See Doc. 157, at 12.

It

directed further consultation among the parties and, if needed,
further briefing on those issues.

The first two questions the

Court posed - whether there are documents in the possession of
Mr. Felsoci’s attorneys bearing the name of the Unidentified
Client, and whether that person or organization is also a client
of Mr. Felsoci’s attorneys - have been resolved; the answer to
both is “yes.”

This Opinion and Order addresses these issues:

does Mr. Felsoci have “control,” for purposes of Fed.R.Civ.P.
34(a), over any documents showing the name of the Unidentified
Client, and, even if he does, would his production of them
violate the attorney-client privilege?

For the following

reasons, the Court will grant the motion to compel production of
at least one document showing the name of the Unidentified
Client.
I.

“Control”

Fed.R.Civ.P. 34(a) allows a party to ask for, and requires a
party to produce for inspection and copying, documents within the
responding party’s “possession, custody, or control.”

The

general principles about when, for Rule 34 purposes, a client has
“control” of documents in the possession of a non-party are
fairly straightforward.

“Control” is defined as “the legal right

or ability to obtain the documents from another source upon
demand ....”

Mercy Catholic Medical Center v. Thompson, 380 F.3d

142, 160 (3d Cir. 2004).

Neither physical possession nor legal

ownership of the documents is required; “[c]ourts have also
‘interpreted Rule 34 to require production if the party has the
practical ability to obtain the documents from another,
irrespective of his legal entitlement.’”

In re NASDAQ

Market-Makers Antitrust Litigation, 169 F.R.D. 493, 530 (S.D.N.Y.
1996), quoting Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D.
514, 525 (S.D.N.Y.1992)(although one court has observed that “the
‘practical ability’ to demand production must be accompanied by a
similar ability to enforce compliance with that demand,” see
Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 520
-2-

(D. Colo. 2003)).

Further, “[t]he term control in the context

of discovery is to be broadly construed.”

New York ex rel.

Boardman v. National R.R. Passenger Corp., 233 F.R.D. 259, 268
(N.D.N.Y. 2006).
An agency theory is one example of the type of relationship
which gives a party - typically the principal - legal control
over documents possessed by the agent. See, e.g., McBryar v.
International Union of United Auto. Aerospace & Agr. Implement
Workers of America, 160 F.R.D. 691 (S.D. Ind. 1993).
contractual right is another.

An explicit

See Ice Corp. v. Hamilton

Sundstrand Corp., 245 F.R.D. 513 (D. Kan. 2007).

Family

relationships, such as between spouses, can also suffice,
especially if the facts show that a party has control over
documents in the possession of a non-party spouse “as a matter of
practical fact.”

See Monroe's Estate v. Bottle Rock Power Corp.,

2004 WL 737463, *10 (E.D. La. Apr. 2, 2004).

Attorney-client

relationships are agency relationships, but are also governed by
special rules defining an attorney’s ethical duties to the client
(as well as to others), and it would seem logical that the
totality of the legal and ethical rules governing the attorneyclient relationship must be considered when deciding what
documents in the attorney’s possession the client has the legal
or practical right to demand.
There may be instances where some factual development is
needed to demonstrate that, even apart from legal ownership or a
legal right to demand documents, a party has the practical
ability to obtain them.

But that is not this case.

Plaintiffs

rely on a legal theory founded on Ohio Rules of Professional
Conduct §1.8(f)(1), which prohibits a lawyer ethically from
accepting compensation for representing a client from someone
other than the client unless “the client gives informed consent.”
(Emphasis in original).

Informed consent is defined in §1.8(f)
-3-

to mean “the agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate information and
explanation about the material risks of and reasonably available
alternatives to the proposed course of conduct.”

The comment to

Rule 1.8(f)(1) states that “[s]ometimes, it will be sufficient
for the lawyer to obtain the client’s informed consent regarding
the fact of the payment and the identity of the third-party
payer,” but more information may be needed if the situation
involves a conflict of interest.

This comment suggests that the

identity of the third-party payer is a necessary, but not always
sufficient, part of the information which must be imparted in
order for informed consent to occur.

See also Wyoming Lawyer

CONFLICTS OF INTEREST: THIRD PARTY PAYERS (December,1998), at *16
(“A client will not likely appreciate the significance of the
potential conflict of interest created by having a third party
pay unless the lawyer tells the client how the conflict could
affect the representation”).

It is fair to ask how that could be

done if the identity of the person paying the bills is not
disclosed.
Following Plaintiffs’ reasoning to its logical conclusion,
Mr. Felsoci was entitled by a legal rule - Rule 1.8(f)(1) - to be
told of the identity of the third-party payer.

Accepting as

true his statement that he has never been given that information,
he would have a legal right to demand some document - perhaps the
billing statements sent to the third-party payer for work done as
part of the representation of Mr. Felsoci - that would show the
identity of that person or organization, and his lawyers would
have a corresponding legal duty to provide that document to him.
But all of this hinges on whether the ethical rule in question
does, in fact, prescribe a legal duty on counsel’s part to make
that disclosure.
In his argument addressing the issue of control, Mr. Felsoci
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makes no mention of this ethical rule.

The cases he cites stand

for the more general proposition that the mere fact that an
attorney represents multiple clients does not mean that documents
relating to one of those clients (and which, under traditional
agency principles, only that client would have control over) can
be demanded by a different client.

While true, that begs the

question of whether a legal or ethical rule can alter the
situation so that some limited universe of documents created as
part of the representation of one client can be demanded by
another.

Here, for example, it would usually not be the case

that a lawyer would have to tell one client about another
client’s payment of legal fees to the same lawyer; were the two
matters involved totally separate, such a disclosure would
probably be prohibited.

But where the arrangement involves the

first client’s paying for work done for the benefit of the second
client, at least some details of the arrangement must legally be
disclosed in order for the representation to be ethically proper.
So something not ordinarily required of a lawyer who represents
multiple clients may be mandated by rules promulgated to govern
the behavior of that lawyer when an atypical arrangement is
proposed.
There is certainly precedent for courts to use obligations
created by rules of ethics as the basis for judicial action; that
is, “[i]n some cases, courts have established rules of law from
ethical rules.”

Bodily v. Intermountain Health Care Corp., 649

F.Supp. 468, 472 (D. Utah 1986), citing United States v. Thomas,
474 F.2d 110
of Ohio.

(10th Cir.1973).

That includes the District Courts

So, for example, in Matter of Investigative Grand Jury

Proceedings on April 10, 1979 and Continuing, 480 F.Supp. 162,
168 (N.D. Ohio 1979), the court noted that “[d]ecisions of other
courts support the conclusion that joint representation of
targets and non-targets constitutes a conflict of interest
-5-

warranting remedial judicial action.”

The source of the duty to

avoid such conflicts was, at that time, “the American Bar
Association's Code of Professional Responsibility.”

Id. at 165.

Using such ethical rules as the basis for resolving motions to
disqualify counsel is now standard practice.

See, e.g., SST

Castings, Inc. v. Amana Appliances, Inc., 250 F.Supp.2d 863 (S.D.
Ohio 2002).

And the conflict of interest rules are not the only

ones which have led courts to find enforceable legal duties.
For example, United States v. Thomas, supra, derived and applied
a legal rule from the ethical prohibition against communicating
with adverse parties who are known to have counsel in the matter.
Of course, not every ethical rule creates an enforceable
legal duty, especially as it relates to persons who are not the
attorney’s clients; for example, “[a]n ethical duty of disclosure
does not create a corresponding legal duty under the federal
securities laws”
Cir. 1991).

Schatz v. Rosenberg, 943 F.2d 485, 492 (4th

But generally, because codes of professional

responsibility are “recognized as providing appropriate
guidelines for the professional conduct of ... lawyers ... the
Court has the inherent power to ensure compliance with these
standards.”

United States ex rel. Sheldon Elec. Co., Inc. v.

Blackhawk Heating & Plumbing Co., Inc., 423 F.Supp. 486, 488
(S.D.N.Y. 1976).

The question then becomes whether this

particular ethical rule, mandating informed consent about a
situation which carries with it the potential for a conflict of
interest, creates an enforceable legal duty owed to Mr. Felsoci,
and whether, in order to discharge that duty, his counsel must
let him inspect, on demand, at least one document revealing the
name of the Unidentified Client.
The Court concludes that Rule 1.8(f)(1) does create an
enforceable right.

Like the other conflict of interest rules

which courts have routinely enforced in the context of motions to
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disqualify, Rule 1.8(f)(1) is designed to insure that “the
lawyer's independent professional judgment and the lawyer-client
relationship ... be maintained sacrosanct; and no improper
disclosures relating or referring to the representation [are]
made” to the third-party payer.

See In re State Grand Jury

Investigation, 200 N.J. 481, 495 (2009).

In particular, Rule

1.8(f) recognizes that a third-party payer arrangement can create
conflicted duties of loyalty if the interests of the client and
the payer ever diverge, and it “impose[s] a duty upon the
attorney to represent the sole interests of the client”
regardless of who is paying the bills.

Barefield v. DPIC

Companies, Inc., 215 W.Va. 544, 557-58 (2004).

When that does

not occur, this rule, like the other conflict rules, has been
used as a legal basis for disqualifying counsel.

See, e.g.,

United States v. Fazio, 2011 WL 6140746 (E.D. La. Dec. 9, 2011).
It therefore creates enforceable legal duties, and Mr. Felsoci is
in a position, as both a legal and practical matter, to demand
any information which he needs in order for him to have provided
his “informed consent” to the third-party payer arrangement (and
counsel, who owe him and not the payer the utmost duty of loyalty
in this situation, are legally obligated to give him that
information on demand).

Further, counsel cannot, without

creating an impermissible conflict of interest, withhold
information from Mr. Felsoci to which he is entitled on grounds
that revealing it would violate a duty of confidentiality owed to
the Undisclosed Client; that is not where their duty of loyalty
lies in this type of situation.
It might be argued, however, that Mr. Felsoci’s informed
consent could have been obtained even if he had not been told the
identity of the person footing the legal bills for his protest
and his litigation activity.

However, one primary purpose for

that type of disclosure is to allow the client to determine
-7-

whether allowing someone else to pay the legal bills will
undermine his attorney’s obligation to represent his interests to
the exclusion of the interests of the payer.

It seems impossible

that a client could make an intelligent decision about that issue
if the client is completely unaware of who has offered to pay the
bills.

That payer’s motivation, and the nature of the payer’s

interest in the issue (which, presumably, is strong enough to
cause it to spend its resources on a legal matter to which it is
not a party - a fairly unusual situation outside of the insurerinsured or employer-employee relationship) would have to be
communicated in order for the attorney to have provided “adequate
information and explanation about the material risks of ... the
proposed course of conduct,” which is the definition of “informed

consent.”

The comment to Rule 1.8(f), quoted above, fully

supports this interpretation.

For all of these reasons, the

Court concludes that documents in the physical possession of Mr.
Felsoci’s counsel which reveal the identity of the person or
entity paying Mr. Felsoci’s legal bills are in Mr. Felsoci’s
“control” for purposed of Fed.R.Civ.P. 34(a).
II.

Privilege

The next question is whether some document containing the
name of the client who is paying the legal bills for Mr. Felsoci,
even if the document is one Mr. Felsoci could demand to inspect,
is protected from further disclosure by the attorney-client
privilege.

In this case, the question of privilege is governed

by federal law.

F.R.E. 501; see also Hancock v. Dodson, 958 F.2d

1367, 1373 (6th Cir. 1992).
The Court begins by stating the general principles governing
the attorney-client privilege.

The primary purpose of the

attorney-client privilege “is to encourage ‘full and frank
communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and the
-8-

administration of justice.’”

Ross v. City of Memphis, 423 F.3d

596, 600 (6th Cir. 2005) (citations and internal quotations
omitted).

The party asserting the privilege bears the burden of
United States v. Dakota, 197 F.3d

establishing its existence.

821, 825 (6th Cir. 1999) (citation omitted).
The privilege protects, among other communications, “the
giving of professional advice to those who can act on it.”
Upjohn Co. v. United States, 449 U.S. 383, 390 (1981) (citation
omitted).

Under federal law, the attorney-client privilege

exists when the following elements are met:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3)
the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his
instance permanently protected (7) from disclosure by
himself or by the legal adviser, (8) unless the
protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (citations
omitted).
Typically, the identity of a client is not protected by the
attorney-client privilege.

See In re Grand Jury Investigation

No. 83-2-35, 723 F.2d 447, 451 (6th Cir. 1983) (“The federal
forum is unanimously in accord with the general rule that the
identity of a client is, with limited exceptions, not within the
protective ambit of the attorney-client privilege” (citations
omitted)).

Nor is the payment of fees typically protected by the

attorney-client privilege.

United States v. Ritchie, 15 F.3d

592, 602 (6th Cir. 1994) (“virtually every court to consider the
issue has concluded that client identity and payment of fees is
not privileged information”) (citation and footnote omitted).
However, there is an exception when “disclosure of the
identity would be tantamount to disclosing an otherwise protected
confidential communication.”
83-2-35, 723 F.2d at 453.

In re Grand Jury Investigation No.

That exception applies when “‘so much
-9-

of the actual communication has already been disclosed that
identification of the client amounts to disclosure of a
confidential communication.’”

In re Grand Jury

Proceedings-Gordon, 722 F.2d 303, 307 (6th Cir. 1983) (quoting
NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965)).

Still,

“[t]he mere ‘fact of consultation including the component facts
of ... scope or object of employment’ is not privileged.”

In re

Grand Jury Proceedings-Gordon, 722 F.2d 303, 308 (6th Cir. 1983)
(citing McCormick, Evidence §90 (2d ed. 1972); 2 Weinstein's
Evidence ¶503(a)(4)[02] (1982); Colton v. United States, 306 F.2d
633 (2d Cir. 1962).
These cases, and authority relied on by Mr. Felsoci, such as
NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965), make it clear that
there must have been some prior disclosure of at least part of a
confidential communication which, if the client were identified,
would then be tied to that client.

Further, as Harvey notes,

“[n]ot all communications to a lawyer are privileged,” id. at
904, and both the client’s identity and the fact that the client
has retained the lawyer are not ordinarily considered to be
privileged communications even though such communications are
necessary in order for the attorney-client relationship to be
established.

Id. at 905.

Here, Mr. Felsoci has not identified any specific
confidential communications that have been disclosed to which the
Unidentified Client would be linked.

Nor has he identified any

activities engaged in by the Unidentified Client (such as
authorizing counsel to hire a private investigator to gather
information about a particular subject - the circumstances which
led the Harvey court to find the exception applicable) other than
retaining counsel to pay Mr. Felsoci’s legal bills.
Consequently, that is the only information that would be revealed
by identifying the Unidentified Client.
-10-

As noted, at least in

this Circuit, neither the subject matter or object of
consultation nor the payment of fees are typically considered
privileged.
308;

In re Grand Jury Proceedings-Gordon, 722 F.2d at

United States v. Ritchie, 15 F.3d at 602.

Thus, it does

not appear that the content of any privileged communications
would be disclosed were the name of the Unidentified Client to be
revealed.
The Gordon decision, which is, of course, controlling here,
is especially instructive.

There, the Court of Appeals held that

this question posed to an attorney who had incorporated various
businesses - “identify the person or persons who requested each
incorporation” - did not call for the disclosure of privileged
information because identifying the client who asked for those
specific legal services to be performed “merely amounts to a
disclosure of the scope and objective of the legal employment,”
and that was not “tantamount to a disclosure of a confidential
communication.”

Id. at 305, 308.

By disclosing the name of the

Unidentified Client, even if that information permits an
inference about why that client agreed to finance the ballot
challenge in question, nothing more will have occurred in this
case than “a disclosure of the scope and objective of the legal
employment.”

Gordon clearly holds that this type of disclosure

is not privileged.
Mr. Felsoci cites to several decisions which, he contends,
stand for the proposition that even if identifying the client
would not reveal the substance of some specific communication
between attorney and client, revealing even the client’s motive
for seeking legal advice is privileged, and that revealing the
identity of the client who is paying for another client’s
representation necessarily reveals the payer’s motive.

In

support, he cites, among other cases, In re Grand Jury Subpoena
for Attorney Representing Criminal Defendant Reyes-Requena, 926
-11-

F.2d 1423 (5th Cir. 1991), In that case, the court of appeals
quashed a subpoena that would have revealed the identity of a
criminal defense attorney’s client who had agreed to pay for the
defense of a different client.

A first subpoena for that

information, issued prior to conviction of the second client, was
quashed because it might have tied the payer to a drug
organization (a problem not present in this case).

A second

subpoena, issued after a conviction of the other client was
obtained, was then quashed on grounds that the payer’s identity
was “connected inextricably with a privileged communication — the
confidential purpose for which [the payer] sought legal advice.”
(Emphasis supplied).

The same result has been reached in a

number of cases where the unnamed client retained an attorney to
make an anonymous payment of taxes to the IRS based on the
client’s conclusion that it underpaid taxes in the past.

See,

e.g., Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).
Here is why the rationale of that Reyes-Requena, which
focuses on the possibility that by identifying the client, the
lawyer will also disclose the confidential nature of the client’s
purpose in seeking legal advice, does not apply to the current
situation.

First, the Reyes-Requena court made it clear that the

attorney-client privilege was implicated by disclosure of the
identity of the unnamed client “only if [that disclosure was]
intertwined with confidential communications made for the purpose
of obtaining legal advice for the anonymous benefactor.”
1432 (emphasis in original).

Id. at

By contrast, the arrangement in

this case seems clearly to have been made for the purpose of
providing legal advice and assistance to Mr. Felsoci in filing a
protest - or, at least, that is the logical inference to draw
once the name of the Unidentified Client is disclosed.

The Court

notes that in counsel’s declaration, see Doc. 159, Exh. A.,
counsel states that his firm was consulted by the Unidentified
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Client prior to the Firm’s agreeing to represent Mr. Felsoci and
that “the confidential client ... is interested in the same
matter and ... has received and is receiving legal advice from
our Firm about it.”

Declaration of John W. Zeiger, Esq., ¶3.

That may be so, but the disclosure of that client’s identity
would not necessarily have revealed that fact; the client could
have had any number of reasons for agreeing to pay Mr. Felsoci’s
legal fees, and counsel cannot, by choosing to make a more
specific disclosure of the purpose of the representation, then
argue that revealing the client’s identity would accomplish the
same thing.

Further, there is still no risk that by disclosing

the Unidentified Client’s identity, the nature of either any
legal issue created for that client by Mr. Earl’s nominating
petitions, or any advice given to the Unidentified Client on that
subject, will be revealed.

Unlike the situation in Reyes-

Requena, the Unidentified Client will not, by being named, be
tied to some criminal wrongdoing, and, unlike the situation in
the taxpayer cases, it will not be linked to prior underpayments
of income taxes which might lead to an IRS audit.

See also Ralls

v. United States, 52 F.3d 223, 226 (9th Cir. 1995), where the
court applied the exception because revealing the client’s name
would disclose “that the fee-payer specifically discussed his or
her own criminal liability in connection with the same crime for
which [the person whose fees were paid] was charged.” (Emphasis
supplied).

In short, there is simply no evidence that the

substance of any privileged communications between counsel and
the Unidentified Client about that client’s legal interests, if
any, implicated by Mr. Earl’s nominating petition will be
revealed if that client is identified.

Further, it cannot be

inferred that the Unidentified Client has communicated with
counsel about the issues involved in Mr. Felsoci’s protest; given
that this is not a joint representation, it would not have been
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proper for counsel to tell the Unidentified Client about any
advice given to Mr. Felsoci on that subject.

The Court therefore

concludes that the cases cited by Mr. Felsoci provide no basis
for applying the attorney-client privilege to this limited piece
of information - and if they do, they must be disregarded as
inconsistent with Gordon.
That said, the Court also finds support for its decision in
other cases.

For example, in United States v. BDO Seidman, 337

F.3d 802, 812 (7th Cir. 2003), the Court of Appeals for the
Seventh Circuit, which had applied the exception relied on by Mr.
Felsoci in several earlier decisions, was presented with a case
involving the taxpayer-tax adviser privilege which, by statute,
see 26 U.S.C. §7525, is to be construed the same way as the
attorney-client privilege with respect to communications made
during the course of the relationship. The court noted, first,
that the exception to the general rule that a client’s identity
is not privileged is

“narrow” and that it had been applied most

often in cases where revealing the client’s identity would, given
other facts which had already been disclosed, necessarily make
clear what the client had communicated to the attorney.

In BDO

Seidman, the court recognized that the fact that a taxpayer had
consulted his tax adviser about a specific tax-sheltered
investment would reveal to the IRS that the client had
participated in an investment being investigated by the IRS as
abusive, but not what the client may have said to the attorney
about that, or what the attorney had advised.

Consequently, the

court held that it was “less than clear ... what ... motive or
other confidential communication of tax advice, can be inferred
from that information [the client’s identity] alone.”

The simple

fact that the taxpayer consulted with an adviser about the taxsheltered investment was not, in the court’s view, likely to shed
light on the parties’ communications because the IRS knew
-14-

“relatively little about the interactions between [the advisor]
and the [taxpayers], the nature of their relationship, or the
substance of their conversations.”

Id. at 811-12.

That situation closely parallels the facts of this case.
The public (from whom, it appears, the Unidentified Client wishes
to shield its identity) presumably knows very little about any
interactions between the Unidentified Client and Mr. Felsoci’s
lawyers, the nature of any relationship they have, or the
substance of any conversations between them - or, at least, there
is no proof in this record that any of these matters are widely
known.

It is worth noting that the proponent of any privilege

has the burden of making a record as to the facts pertinent to
the Court’s enforcement of that privilege.

See In re Grand Jury

Investigation No. 83-2-35, 723 F.2d at 450 (“[t]he burden of
establishing the existence of the privilege rests with the person
asserting it”).

Without evidence identifying a specific portion

of a specific confidential communication which has already been
disclosed, and to which the Unidentified Client could be linked
if its identity were made known, it is impossible to conclude
that this case falls within the narrow exception represented by
decisions like Reyes-Requena, supra, Harvey, supra, or cases
cited by the BDO Seidman decision such as Tillotson v. Boughner,
350 F.2d 663 (7th Cir. 1965) and In re Grand Jury Proceeding
(Cherney), 898 F.2d 565, 567 (7th Cir.1990).

And this is clearly

not a case like Medtronic Sofamor Danek, Inc. v. Michelson, Case
No. 01-2373, at 9 (W.D. Tenn. Nov. 6, 2003) (cited by Mr.
Felsoci, see Doc. 159-2), where the clients (whose identities
were already known) were jointly represented by the same
attorney, the discovery request was not for their identities but
the fee arrangements they made with counsel, and disclosure of
that information, communicated in the course of a joint
representation - something expressly disclaimed by Mr. Felsoci’s
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counsel - would “reflect confidential communications, such as the
monetary exposure of each defendant, the chance of recovery for
each party, the chance of success for each party, and the
validity of claims and defenses.”

No such matters would be

revealed following the disclosure of the identity of the
Unidentified Client in this case.
III.

Summary of Analysis

The Court concludes, for the reasons stated above, that the
rule rather than the exception applies here.

In almost every

situation where one person pays the legal fees of another, the
fact of that arrangement is fair game for disclosure and no
privilege to withhold that fact exists.

So, for example, when a

plaintiff sought disqualification of attorneys who represented
both PetSmart and four of its employees under an agreement which
obligated PetSmart to pay all of the legal fees, the court noted
that the plaintiff had not “shown that the confidential
information of the employees or of PetSmart has been compromised”
even though the fact of the payment arrangement and the identity
of the payer were disclosed.

See Perez v. PetSmart, Inc., 2011

WL 4026910, *5 (E.D.N.Y. Sept. 12, 2011).

There, the parties had

a joint interest in defending themselves against litigation,
something not typically deemed confidential.

Here, Mr. Felsoci

and his counsel have stated that Mr. Felsoci and the Unidentified
Client share “an interest in ensuring the integrity of Ohio’s
election process ....”

See Doc. 159, at 3.

That is, ordinarily,

a matter not deemed to be confidential; it is something to which
every good citizen should aspire.

There is no evidence that any

communication of any kind between the Unidentified Client and
counsel will be revealed simply because its identity is
disclosed; beyond knowing the simple fact that the Unidentified
Client agreed to pay Mr. Felsoci’s legal bills, the identity of
that client cannot be tied to any communications made in
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confidence between that client and its attorneys.
True, revealing the identity of the Unidentified Client
allows the public to infer that the client stated to counsel, “I
will pay Mr. Felsoci’s legal fees if he files a protest,” or
words to that effect.

But if that one statement is deemed

privileged, the identity of a third-party payer (who, presumably,
always makes that type of statement) could never be disclosed.
That is just not the law.

Consequently, since Mr. Felsoci, to

the extent that he has not otherwise been told who the
Unidentified Client is who has agreed to pay his legal fees, has
an enforceable right to demand a document showing that person or
organization’s identity, and because such information is not
privileged, the Court will grant the motion to compel.
IV.

Conclusion and Order

For the foregoing reasons, the motion to compel concerning
Defendant-Intervenor Gregory Felsoci (Doc. 130) is granted.
Within three business days, Mr. Felsoci shall produce at least
one document responsive to the request which asks for documents
revealing the name of the “Unidentified Client.”

In doing so, he

shall insure that the document is properly redacted of any
information which might disclose communications between his
attorneys and the Unidentified Client except for the fact that
the Unidentified Client is being billed for services rendered to
Mr. Felsoci.
V.

Motion for Reconsideration

Given the time-sensitive nature of this matter, these times
are being shortened substantially.
Any party may, within three days after this Order is filed,
file and serve on the opposing party a motion for reconsideration
by a District Judge.

28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed.

R. Civ. P.; Eastern Division Order No. 14-01, pt. IV(C)(3)(a).
The motion must specifically designate the order or part in
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question and the basis for any objection.

Responses to

objections are due three days after objections are filed and
replies by the objecting party are due two days thereafter.

The

District Judge, upon consideration of the motion, shall set aside
any part of this Order found to be clearly erroneous or contrary
to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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