Snyder v. Fleetwood RV, Inc. et al
Filing
23
OPINION AND ORDER granting in part and denying in part 20 Motion to Quash. Signed by Magistrate Judge Terence P Kemp on 10/1/2014. (agm1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lora F. Snyder,
:
Plaintiff,
:
v.
:
:
Fleetwood RV, Inc., et al.,
Defendants.
Case No. 2:13-cv-1019
Magistrate Judge Kemp
:
OPINION AND ORDER
Plaintiff Lora Snyder brought this action against Defendants
Fleetwood RV, Inc., and Spartan Chassis, Inc., alleging that they
are responsible for defects and nonconformities in a motor home
which Ms. Snyder acquired.
In the course of discovery, Defendant
Spartan Chassis, Inc. (“Spartan”) subpoenaed Ms. Snyder’s
husband, Don Snyder, who is not a party to this action, seeking
certain documents.
Ms. Snyder and Mr. Snyder filed a motion to
quash the subpoena and for related attorney fees (Doc. 20).
motion has been fully briefed.
The
For the following reasons, the
motion will be granted in part and denied in part.
I.
Background
On July 24, 2014, Spartan served a subpoena on Mr. Snyder to
produce documents, information, or objects or to permit
inspection of premises in a civil action.
seven categories of documents.
The subpoena sought
Mr. and Ms. Snyder objected to
producing the following five categories of documents:
1. Individual tax documents from 2010 to the present;
3. Any written or electronic correspondence or notes
related to American Heritage Model 45BT VIN
4VZUIE98BC074290 including correspondence or notes
between Don Snyder and Attorney Robert D’Anniballe;
5. Any written or electronic correspondence or notes
related to Fleetwood RV Model K3 VIN 4VZUIE93CC075574
including correspondence or notes between Don Snyder
and Attorney Robert D’Anniballe;
6. Copy of notes taken by Don Snyder during the
deposition of John Mestlin on June 25, 2014, which were
separated from a yellow legal pad and preserved by the
Court Reporter;
7. Copy of all notes maintained in the yellow legal pad
in the possession of Don Snyder during the deposition
of John Mestlin on June 25, 2014, which Mr. Snyder
refused to provide and further refused to preserve with
the court reporter.
(Doc. 20, Exh. A).
The Snyders claim the documents described in
categories 3, 5, and 6 are protected by the attorney-client
privilege or the work product doctrine.
They objected to
producing documents responsive to categories 1 and 7 as unduly
burdensome and not reasonably calculated to lead to the discovery
or admissible evidence.
On August 6, 2014, the Snyders filed a
motion to quash that subpoena, repeating these objections in
their motion.
II.
The Motion to Quash
Motions to quash are governed by Rule 45(d)(3), which
provides, inter alia, that a court “must quash or modify a
subpoena that . . . (iii) requires disclosure of privileged or
other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.”
In addition, while the
Rule itself does not list irrelevance or overbreadth as reasons
for granting a motion to quash, “[c]ourts ... have held that the
scope of discovery under a subpoena is the same as the scope of
discovery under Rule 26.”
Hendricks v. Total Quality Logistics,
LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011), quoting Barrington v.
Mortage IT, Inc., 2007 WL 4370647 (S.D. Fla. Dec. 10, 2007); see
also Advisory Committee Note to the 1970 Amendment of Rule
45(d)(1) (the 1970 amendments “make it clear that the scope of
discovery through a subpoena is the same as that applicable to
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Rule 34 and the other discovery rules.”); 9A Charles A. Wright
and Arthur R. Miller, Fed. Prac. & Proc. Civ. §2459 (3d ed.)
(“Although a subpoena may be quashed if it calls for clearly
irrelevant matter, the district judge need not pass on the
admissibility of the documents sought in advance of trial nor
quash a subpoena demanding their production if there is any
ground on which they might be relevant. . . . This discovery
relevancy standard has been applied to subpoenas in many cases”)
(citations omitted).
Rule 45 does not say who has the burden of proof with
respect to the facts supporting a motion to quash.
The case law
generally states that the burden is on the party who filed the
motion.
However, some cases make an exception when relevancy is
not apparent on the face of the request:
The party seeking to quash a subpoena bears the
ultimate burden of proof. See, e.g., White Mule Co. v.
ATC Leasing Co. LLC, 2008 WL 2680273, at *4 (N.D. Ohio
June 25, 2008). If the discovery sought appears
“relevant on its face, the party resisting the
discovery has the burden to establish the lack of
relevance” but “when relevancy is not apparent on the
face of the request, the party seeking the discovery
has the burden to show the relevancy of the request.”
Transcor, Inc. [v. Furney Charters, Inc.], 212 F.R.D.
[588] at 591 [(D. Kan. 2003)].
Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253
(S.D. Ohio 2011).
The Snyders first argue that the documents sought by
subpoena categories 3, 5, and 6 are protected by the attorneyclient privilege.
Rule 501 of the Federal Rules of Evidence
provides that “in a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the
rule of decision.”
Fed. R. Evid. 501.
State law supplies the
rule of decision in diversity actions such as the action before
the Court.
See, e.g., Equitable Life Assur. Soc. of U.S. v. Poe,
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143 F.3d 1013, 1016 (6th Cir. 1998) (“Pursuant to the well-known
doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938), a federal judge sitting in a diversity action
must apply the same substantive law that would be applied if the
action had been brought in a state court of the jurisdiction in
which the federal court is located”); see also Corrigan v. U.S.
Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007) (same).
Therefore, state privilege law applies here.
Both the Snyders and Spartan cite to Ohio law and federal
law regarding the attorney-client privilege, but neither cites to
any other State’s law.
The Complaint alleges that the sale of
the motor home at issue took place in Ohio, that Ms. Snyder
resides in Ohio, and that the motor home at issue is in Ohio.
The Complaint also pleads causes of action under Ohio statutes.
There is no evidence before the Court regarding any choice of law
provisions in any contract.
Accordingly, the Court will analyze
the question of privilege under Ohio law, which is summarized
here:
“The privilege of a witness, person, state or political
subdivision thereof shall be governed by statute
enacted by the General Assembly or by principles of
common law as interpreted by the courts of this state
in the light of reason and experience.” [Ohio] Evid.
R. 501.
In Ohio, the attorney-client privilege is governed by
statute, R.C. 2317.02(A), and in cases that are not
addressed in R.C. 2317.02(A), by common law. See,
e.g., R.C. 2317.02(A), which provides that in general,
an attorney shall not testify “concerning a
communication made to the attorney by a client in that
relation or the attorney's advice to a client”; . . .
. . .
Under the attorney-client privilege, “(1) [w]here 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
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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 (C.A.6, 1998), 134 F.3d 351,
355–356; Perfection Corp. v. Travelers Cas. & Sur. Co.,
153 Ohio App.3d 28, 2003-Ohio-2750, 790 N.E.2d 817, ¶
12.
State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St. 3d
261, 264-65 (2005).
The burden of showing that testimony or
documents should be excluded based on the attorney-client
privilege rest upon the party asserting the privilege.
See,
e.g., Peyko v. Frederick, 25 Ohio St. 3d 164, 166 (1986).
The Snyders cite to Ohio’s statutory definition of “client”
to argue that all the communications between Mr. Snyder and his
wife’s attorney were really indirect communications between Ms.
Snyder and her attorney.
O.R.C. 2317.021 defines “client” as a
person or entity “that, directly or through any representative,
consults an attorney for the purpose of retaining the attorney or
securing legal service or advice from the attorney in the
attorney’s professional capacity . . . and who communicates,
either directly or through an agent, employee, or other
representative, with such attorney; and includes an incompetent
person whose guardian so consults the attorney in behalf of the
incompetent person.”
The Snyders then cite to State v. Shipley, 94 Ohio App. 3d
771, 776 (1994) for the proposition that a close relative can be
an agent or representative of the client.
In Shipley, the court
concluded that the client’s communications to his attorney were
privileged and that the privilege was not waived by his brother’s
presence for some of the communications.
Shipley does not
address communications made by the brother to the attorney, but
merely whether the brother’s presence waived the privilege as to
the client’s communications with the attorney.
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The Shipley
decision cited to the fourth paragraph of the syllabus of Bowers
v. State, 29 Ohio St. 542 (1876), which stated that admissions
made to an attorney by a client were “not deprived of their
privileged character by the fact that her mother was present, and
participated in the consultation; the presence and aid of the
mother being necessary and proper in such a case, she should be
regarded as the mere agent of the daughter.”
While Shipley interpreted Bowers rather liberally, a more
recent Ohio Court of Appeals decision interpreted the Bowers
decision more narrowly, declining to treat a mother as her son’s
agent for purposes of confidentiality when the son was not a
minor.
State v. Whitaker, 1998 WL 704348, *2 (Warren Co. App.
Oct. 12, 1998) (“Because appellant was not a minor, such cases
[as Bowers] do not apply to the present facts”).
This narrow
interpretation seems to fit with the language of the Bowers
decision, which specifically noted the client’s youth (she was
under 18) and the delicate nature of the communications as making
the mother’s presence and participation “appropriate and
necessary.”
Bowers, 29 Ohio St. at 546.
Regardless of which interpretation of Bowers is correct, the
Snyders have not provided evidence to demonstrate that any of the
communications at issue should be shielded by the attorney-client
privilege.
First, there is no evidence that any of the documents
sought in categories 3 or 5 of the subpoena (written or
electronic correspondence or notes related to certain models
including correspondence or notes between Mr. Snyder and his
wife’s attorney) were communications made indirectly by Ms.
Snyder through Mr. Snyder as her representative or agent.
To the
contrary, the unsupported allegations in the memorandum in
support of the motion to quash suggest that Mr. Snyder has
“unique and specific knowledge of the subject matter at issue,”
in part because he owns a tire store that performs repairs and
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alignments on vehicles and is a licenced commercial truck driver
with automotive and mechanical expertise.
This suggests that he
has specialized knowledge that his wife does not have and is
communicating more as a consultant than as one who is conveying
communications from his wife to her attorney.
This is further
supported by the memorandum’s assertion that, though not a party
to the lawsuit, Mr. Snyder is himself an “interested party in
this lawsuit,” which indicates that his communications may be
expressing his own concerns and interests.
To the extent that
the statutory definition of “client” can be read to extend the
attorney-client privilege to communications by a client that are
made through a representative, that definition still requires the
client to be the source of the communications.
While the memorandum goes on to say that “[b]ecause Mr.
Snyder possesses this knowledge, Plaintiff often consults with
him on these matters related to this case, and Mr. Snyder often
communicates on Plaintiff’s behalf as her representative and
agent in this and related matters,” that representation places
Mr. Snyder in the role of an expert consultant or co-client,
neither of which is claimed as a basis for the privilege asserted
here.
Furthermore, neither Ms. Snyder nor Mr. Snyder has
provided an affidavit or other evidence which supports these
assertions.
Absent any evidence, the Court cannot conclude that
the communications at issue were attorney-client communications
initiated by Ms. Snyder and made through Mr. Snyder.
The same
holds true for the sixth category of documents sought in the
subpoena, at least to the extent that Mr. Snyder claims they are
protected by the attorney-client privilege.
The Snyders also assert work product protection for
documents responsive to the sixth category of documents sought in
the subpoena.
That request seeks the “notes taken by Don Snyder
during the deposition of John Mestlin on June 25, 2014, which
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were separated from a yellow legal pad and preserved by the Court
Reporter.”
The Snyders argue that the notes were prepared in
anticipation of litigation and are protected by the work-product
doctrine.
The Federal Rules of Civil Procedure and federal case law
set forth the applicable law regarding work-product doctrine.
See, e.g., In re Powerhouse Licensing, LLC, 441 F.3d 467, 472
(6th Cir. 2006)(“In a diversity case, the court applies federal
law to resolve work product claims and state law to resolve
attorney-client claims) (citations omitted).
Rule 26(b)(3)(A)
states that “[o]rdinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative
(including the other party's attorney, consultant, surety,
indemnitor, insurer, or agent).
But, subject to Rule 26(b)(4),
those materials may be discovered if: (i) they are otherwise
discoverable under Rule 26(b)(1); and (ii) the party shows that
it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial
equivalent by other means.”
The Court of Appeals “has explained
that ‘a party may satisfy its burden of showing anticipation of
litigation “in any of the traditional ways in which proof is
produced in pretrial proceedings such as affidavits made on
personal knowledge, depositions, or answers to interrogatories,”
and that the showing “can be opposed or controverted in the same
manner.”’”
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 381
(6th Cir. 2009) (citation omitted).
Biegas also stated that an
affidavit claiming work product protection must be specific and
detailed, and “application of the privilege will be rejected
where the only basis for the claim is an affidavit containing
conclusory statement[s].”
Id. at 381 (internal quotation marks
and citation omitted).
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Here Mr. Snyder’s affidavit states that he took minimal
notes concerning the subject-matter of the deposition and the
related litigation.
(Doc. 22 at 8, ¶1).
While his affidavit
does speak to the subject matter of the notes, which suggests
that the notes are relevant, the affidavit does not indicate that
the notes were prepared in anticipation of trial as opposed to
some other purpose, nor does his affidavit say that when he took
the notes, he was acting on behalf of either his wife or her
counsel.
As a result, the Snyders have failed to meet their
burden to demonstrate that the notes in question are work
product.
Mr. Snyder next argues that the documents sought by subpoena
categories 1 and 7 are unduly burdensome and seek information
that is not relevant to this case.
The Court agrees that these
two categories of documents are not relevant on their face and
that Spartan has failed to establish their relevance.
The request for Mr. Snyder’s individual tax documents from
2010 to the present is not relevant on its face because he is not
a party to the action and the damages sought by Ms. Snyder do not
relate to his earnings or anything else that would be reflected
in his tax documents.
Spartan argues, however, that Mr. Snyder’s
status as Ms. Snyder’s husband makes his financial history and
status relevant and that “[i]n other cases where the alleged
value [of damages] in question was as substantial as those
claimed in this case, plaintiffs have been known to manufacture
claims of warranty repair in an effort to get out from underwater
with a vehicle purchase they cannot afford.”
(Doc. 21 at 7).
support this fairly speculative argument, Spartan points to a
statement in which Mr. Snyder said, “I’m not trying to get
warranty I’m just trying to figure out some way, I’ve had
$800,000 tied up for three years and I’ve not been able to use
it.”
(Doc. 21 at 11).
That statement alone does not persuade
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To
the Court that there is any legitimate basis for discovering Mr.
Snyder’s tax returns or related documents.
While it is true that
Mr. Snyder has provided no evidence of undue burden, the Court
finds that this portion the subpoena falls outside the scope of
Rule 26 on its face.
Spartan also requests Mr. Snyder’s yellow notepad, excluding
the notes taken at the deposition of John Mestlin, which were
already removed from the notepad and are being preserved with the
court reporter.
That request is not limited in subject matter,
but merely seeks other notes that happened to be in the same
notepad.
Mr. Snyder’s affidavit states that the notepad
contained other notes that were not related to the litigation at
issue.
To the extent that there are relevant notes or
communications in the yellow notepad which were not given to the
court reporter, Spartan must seek them through a properlytailored request.
In fact, to the extent that the yellow notepad
includes notes relevant to this case, Mr. Snyder may already be
obligated to produce them as a result of one of Spartan’s other
requests.
However, the request, as phrased, is simply not within
the scope of Rule 26.
Last, the Snyders seek attorney’s fees, costs and expenses
pursuant to Rule 26(g)(3) of the Federal Rules of Civil
Procedure.
In light of the Court’s findings that most of the
categories of documents were within the scope of the Rules and
that the categories that were not within the scope were supported
by arguments that were not completely frivolous, the Court finds
that sanctions are not appropriate.
IV.
Conclusion
For the foregoing reasons, the motion to quash is granted in
part and denied in part.
of the subpoena.
requests.
It is granted as to categories 1 and 7
It is denied as to the remainder of the
The documents responsive to those requests shall be
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produced within fourteen days.
The Snyders’ request for
attorney’s fees is denied.
/s/ Terence P. Kemp
United States Magistrate Judge
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