Marshall v. Belmont County Commissioners et al

Filing 17

REPORT AND RECOMMENDATIONS re 13 MOTION for Order that Attorney-Client Privileged Communications Has Not Been Waived: The Magistrate Judge RECOMMENDS that the motion be GRANTED in part and DENIED in part. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 1/17/2014. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBYN MARSHALL,
Plaintiff,
vs.

Civil Action 2:13-cv-966
Judge Graham
Magistrate Judge King

BELMONT COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendants.
REPORT AND RECOMMENDATION
This is an employment action in which plaintiff, formerly the
director of the Belmont County 9-1-1 Emergency Services Center,
alleges that she was discriminated against and eventually terminated
on account of her disability in violation of the ADA, 42 U.S.C. §
12101 et seq., and on account of her gender and in retaliation for
having engaged in protected activities in violation of Title VII, 42
U.S.C. § 2000e-5.

Plaintiff also asserts parallel state law claims of

gender and disability discrimination and retaliation under O.R.C. §
4112.01 et seq., as well as state law claims of intentional infliction
of emotional distress, defamation, and tortious interference with a
contract.

This matter is now before the Court, upon a specific order

of reference pursuant to 28 U.S.C. § 636(b)(1)(B), see Order of
Reference, Doc. No. 16, for consideration of Defendants’ Motion for
Order that Attorney-Client Privilege Has Not Been Waived (“Defendants’
Motion”), Doc. No. 13.

Plaintiff opposes the motion, Plaintiff’s

Response, Doc. No. 14, and defendants have filed a reply, Defendants’

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Reply, Doc. No. 15.
I.

This matter is now ripe for consideration.

Background
The Complaint, Doc. No. 1, contains the following allegations.

Plaintiff Robyn Marshall (“plaintiff” or “Ms. Marshall”) was hired by
Belmont County 9-1-1 Emergency Services Center (the “9-1-1 Center”) in
1996 and was promoted to Director of the 9-1-1 Center in July 2007.
Id. at ¶¶ 2, 10-11.

The 9-1-1 Center is a department of Belmont

County and “act[s] under the authority and oversight” of defendant
Belmont County Board of Commissioners (the “Board”).

Id. at ¶¶ 3-4.

Defendants Ginny Favede, Matthew Coffland, and Charles Probst are all
members of the Board.

Id. at ¶ 5.

From April through October 2011, she alleges, plaintiff “came
under discriminatory scrutiny by the Board in her role as Director” of
the 9-1-1 Center.

Id. at ¶¶ 13-17.

Plaintiff thereafter “filed

complaints regarding the discriminatory treatment in writing and in
person to the County’s human resources director, Michael Kinter.”
at ¶ 19.

Id.

Plaintiff has “severe anxiety” and “took a number of sick

days off due to her job-related, severe anxiety, but . . . the County
only began scrutinizing her more, treating her as disabled and
discriminating against her based upon her disability.”
70.

Id. at ¶¶ 22,

According to the Complaint, “an ad hoc system of reporting and

oversight” was then established solely for plaintiff.

Id. at ¶¶ 24-

25.
On November 18, 2012, plaintiff was notified that the 9-1-1
Center was understaffed because two dispatchers had left to “perform
life-saving measures on a critically injured child in the 9-1-1 Center
parking lot.”

Id. at ¶¶ 28-29.

Upon the arrival of EMS personnel,

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Bri Clark, a dispatcher, allegedly “disregarded her duty and . . .
rode with the EMS squad to the hospital;” she did not return to the 91-1 Center for one and ½ hours.

Id. at ¶¶ 32-38.

Upon her return,

plaintiff placed Bri Clark on administrative leave pending an
investigation.

Id. at ¶ 39.

“The next day, November 19, 2012, Marshall called an attorney for
the County seeking counsel on how to handle the incident with Bri
Clark.

The attorney instructed Marshall to issue an oral reprimand to

Bri Clark.”

Id. at ¶ 47.

At some point, presumably before December

27, 2012, plaintiff “informed the Board of her plan to issue an oral
reprimand to Bri Clark unless she received a written directive from
the Board advising otherwise.

Marshall was acting at the direction of

the attorney for Belmont County, who instructed her to issue the oral
reprimand.”

Id. at ¶ 52.

leave on December 27, 2012.

Bri Clark was removed from administrative
Id. at ¶¶ 50-51.

Plaintiff was directed

by email that same day to take no disciplinary action against Bri
Clark for her actions on November 18, 2012.

Id. at ¶54.

However,

plaintiff did not see that email until the following day, after she
had already issued a verbal reprimand.

Id. at ¶¶ 55-56.

Plaintiff was herself placed on administrative leave on December
31, 2012 pending an investigation.

Id. at ¶ 61.

On January 11, 2013

during an executive session of the Board, defendant Christine Palmer
recommended that plaintiff’s “employment be terminated immediately
because she was allegedly ‘disrespectful, insubordinate, dishonest,
and deceptive and had otherwise failed to exhibit good behavior by
working without Board authority and against the Board’s direction in
issuing the verbal reprimand to Bri Clark.’”

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Id. at ¶ 63.

The Board

terminated plaintiff’s employment with the 9-1-1 Center during the
January 11, 2013 executive session.
II.

Id. at ¶ 64.

Discussion
Defendants seek an order confirming that the attorney-client

privilege between the Board and its’ former counsel has not been
waived by either “1) Ms. Marshall’s attempt to disclose a conversation
between the Board’s former counsel and Ms. Marshall while Ms. Marshall
was the Board’s fiduciary; and 2) the Board’s then former counsel’s
(and he has since remained as a former counsel) unauthorized
disclosure of that conversation to Ms. Marshall’s counsel.”
Defendants’ Motion, p. 1.

Defendants also seek an order “explicitly

prohibit[ing] Ms. Marshall from testifying that she sought the advice
of counsel and acted strictly in accordance therewith.”

Id. at pp. 8-

9.
The purpose of the attorney client privilege is to encourage
clients to communicate freely with their attorneys.

In re Grand Jury

Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996) (citing
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

However,

because the attorney client privilege operates to reduce the amount of
information available for discovery, it is to be narrowly construed.
Id.

The party invoking the protection of the attorney client

privilege bears the burden of establishing the following:
(1) Where legal advice of any kind is sought (2) from a
professional legal advisor 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
his legal advisor, (8) except the protection be waived.

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Fausek v. White, 965 F.2d 126, 129 (6th Cir. 1992) (quoting Humphreys,
Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985)).
According to the Complaint, on November 19, 2012, plaintiff
“called an attorney for the County seeking counsel on how to handle” a
9-1-1 dispatcher who “disregarded her duty” by riding “with an EMS
squad to the hospital” after “perform[ing] life-saving measures on a
critically injured child.”

Complaint, ¶¶ 28-29, 32-38, 47.

“The

attorney[, David Kessler,] instructed [plaintiff] to issue an oral
reprimand to [the dispatcher].”

Id. at ¶ 47.

Attorney David Kessler

thereafter “discussed this issue” with plaintiff’s counsel in this
case and “confirmed that he had, in fact, told Ms. Marshall to proceed
with the verbal reprimand[.]”

See Doc. No. 13-2, p. 2.

Defendants’

Motion asks this Court to confirm that plaintiff’s disclosure of her
November 19, 2012 communications with the Board’s attorney and that
attorney’s subsequent disclosure of the same communications to
plaintiff’s attorney does not constitute a waiver of the attorney
client privilege.
Plaintiff concedes that the relevant communications are protected
by the attorney client privilege, that the privilege belongs to the
county, and that plaintiff had no authority to waive the privilege.
See Plaintiff’s Response, pp. 1-2.

Plaintiff argues, however, that it

was defendants who have waived the attorney-client privilege by
placing the communications at issue in this litigation and by
“disputing Plaintiff’s statements regarding the advice she received
from the attorney and implying she did not receive the advice.”

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Id.

at pp. 3-4.

Plaintiff argues that, “[b]ecause Defendants have

injected the substance of the attorney-client communications between
Plaintiff and the County’s attorney into this litigation and have
implied the content of those communications, the Defendants cannot now
seek to exclude the communications as attorney/client privileged.”
Id. at p. 10.

Plaintiff’s arguments are without merit.

Plaintiff argues that defendants waived the attorney-client
privilege and “injected” privileged communications into this
litigation by attaching evidentiary materials to Defendants’ Motion
that “imply the content of the attorney/client communications they now
seek to have the Court exclude.”

Plaintiff’s Response, p. 8.

However, it was actually plaintiff who injected privileged
communications into this litigation by expressly disclosing the
communications in the Complaint, see Complaint, ¶¶ 47 (“The next day,
November 19, 2012, Marshall called the attorney for the County seeking
counsel on how to handle the incident with Bri Clark.

The attorney

instructed Marshall to issue an oral reprimand to Bri Clark.”), 52
(“Marshall was acting at the direction of the attorney for Belmont
County, who instructed her to issue the oral reprimand.”), and by
positing the content of the privileged communication as a factual
basis for a claim, compare id. at ¶ 67 (“The alleged reasons for
terminating the plaintiff’s employment were mere pretext for the real
reason . . . .”), with Plaintiff’s Response, p. 8 (“Here Plaintiff, to
demonstrate that the reasons provided by Defendants to justify her
termination were a ‘mere pretext’ for discrimination, has plead that

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she was acting upon the advice of the County’s counsel.”).

See Ross

v. City of Memphis, 423 F.3d 596, 603-05, 604 n.5 (6th Cir. 2005)
(“[T]he contents of a privileged communication may be injected into
litigation either by making the content of communications a factual
basis of a claim or defense or by disclosing the communication
itself.”).

Plaintiff’s arguments to the contrary notwithstanding, the

Court views Defendants’ Motion as an attempt to limit the consequences
of plaintiff’s unilateral and unauthorized disclosure, and the
documents attached to Defendants’ Motion as evidence of defendants’
steps to prevent the disclosure.

See Defendants’ Motion, Exhibit B

(February 8, 2013 letter from defendants’ attorney claiming that
communications are protected by attorney-client privilege and arguing
that plaintiff can’t waive the privilege), Exhibit C (plaintiff’s
attorney’s February 12, 2013 response, indicating that the privilege
has been waived), Exhibit D (Defendants’ February 18, 2013 letter to
attorney David Kessler, indicating that plaintiff lacks authority to
waive the privilege and requesting that he refrain from further
disclosure).

A client may waive the attorney-client privilege

intentionally, see e.g., Fed. R. Evid. 502(a), or “by conduct which
implies a waiver of the privilege or a consent to disclosure.”

United

States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999) (citing In re von
Bulow, 828 F.2d 94, 104 (2nd Cir. 1987)).

There is no indication that

the Board intentionally waived the attorney-client privilege; the
Board expressly objected to plaintiff’s disclosure and has taken
affirmative steps to limit disclosure and to protect the privilege.

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The Board’s efforts to preserve its privilege in this action simply do
not constitute a waiver.
As noted supra, defendants also seek an order “explicitly
prohibit[ing] Ms. Marshall from testifying that she sought the advice
of counsel and acted strictly in accordance therewith.”
Motion, pp. 8-9.

Defendants’

Defendants now concede that plaintiff “can testify

to the fact that she had a conversation with Mr. Kessler on November
19, 2013.”

Defendants’ Response, p. 10.

Defendants also concede that

plaintiff “can testify to the actions she took after she spoke with
Mr. Kessler.”

Id. at p. 12.

However, defendants argue that plaintiff

“cannot testify that her actions were in accordance with the legal
consultation” because doing so would “effectively disclos[e] the
content of the communication between her and Mr. Kessler.”
10.

Id. at p.

This Court agrees.
Plaintiff alleges that she consulted with the Board’s attorney

and that he instructed plaintiff to issue an oral reprimand to Bri
Clark.

Complaint, ¶¶ 47, 52.

Testimony that plaintiff issued an oral

reprimand in accordance with the directive of defendants’ attorney
would therefore effectively disclose the entire alleged communication,
i.e., that plaintiff was instructed to issue an oral reprimand.
Plaintiff has not cited any authority that would suggest a contrary
result.

Plaintiff does argue that “[a]n issue similar to that

presented here was decided” in Ross v. City of Memphis, 423 F.3d 596
(6th Cir. 2005).

Plaintiff’s Response, pp. 6-7.

This case is,

however, distinguishable from Ross because plaintiff does not argue

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that she was seeking legal advice in her individual capacity and
defendants have not asserted a claim or defense that would require
examination of protected communications.

See Ross, 423 F.3d at 604-

06.1
Accordingly, it is RECOMMENDED that Defendants’ Motion, Doc. No.
13, be GRANTED in part and DENIED in part.

Specifically, it is

recommended that the Court issue an order confirming that the Board
has not waived the attorney-client privilege with respect to
plaintiff’s November 19, 2011 communications with attorney Kessler,
and, absent evidence of waiver, prohibit plaintiff from testifying
that she acted in accordance with attorney Kessler’s directive.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.

1

The Court is willing to revisit this issue should the Board affirmatively
put plaintiff’s authority to issue a verbal reprimand to Bri Clark at issue
in this litigation.

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See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 17, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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