Waters v. Drake et al

Filing 96

ORDER - Defendants are ordered, within fourteen (14) days, to produce a copy of documents 3778 and 3779. The motion filed by Mr. Waters with respect to the privilege log (Doc. 58 ) is denied in all other respects. Mr. Waters motion(Doc. 65 ) for leave to file a corrected amended privilege log isgranted. Signed by Magistrate Judge Terence P. Kemp on 12/8/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jonathan N. Waters,
Plaintiff,
v.

:
:
:

Case No.

2:14-cv-1704

:
Michael V. Drake, M.D., et al.:

JUDGE JAMES L. GRAHAM

Defendants.

Magistrate Judge Kemp

:
ORDER

This Order issues as a result of Plaintiff Jonathan Waters’
request for the Court to review documents for which The Ohio
State University has claimed a privilege and, as a result, has
declined to produce during discovery.

The Court has now reviewed

the documents submitted in camera under the terms of the Court’s
November 3, 2015 order (Doc. 85).

The purpose of this order is

to advise the parties about the results of that review.
The Court begins with a short description of the claims in
this case which survived the Defendants’ Motion for Judgment on
the Pleadings.

Judge Graham’s Opinion and Order of April 24,

2015 (Doc. 27), Waters v. Drake, __ F.Supp.3d. __, 2015 WL
1885887 (S.D. Ohio 2015), sets forth the background of the case
in detail, noting that it arises out of the termination of
Plaintiff Jonathan Waters as the Director of The Ohio State
University Marching Band.

Mr. Waters was fired on July 24, 2014,

after Ohio State had conducted an investigation and prepared a
report outlining “sexualized” culture within the marching band.
The report was published on the University’s website the same
day.

Mr. Waters sued, pleading one count (but three separate

claims, two procedural and one substantive) grounded in the Due
Process Clause of the Fourteenth Amendment, and one count

alleging reverse employment discrimination in violation of Title
IX of the Education Amendments of 1972, 20 U.S.C. §1681(a).
Judge Graham first determined that Mr. Waters did not have a
property interest in continued employment as the Director and he
was not improperly denied a name-clearing hearing.

That holding

disposed of his two procedural due process claims.

Judge Graham

also concluded that the facts pleaded in the complaint did not
support a reasonable inference that Defendants’ conduct “shocked
the conscience” in a way that triggered substantive due process
protections.

The only claim which survived the motion was Mr.

Waters’ Title IX claim, which alleged that the University applied
different standards and procedures in his case than it did when
similar allegations were made against a female employee.

As

Judge Graham’s Opinion and Order succinctly describes this claim,
it is based on an assertion that “Plaintiff was terminated from
his employment while similarly-situated female employees were
treated more leniently and permitted to retain their employment
despite condoning misconduct similar to that the Plaintiff is
alleged to have condoned.”

Waters v. Drake, supra, at *21.

Mr. Waters served a comprehensive document request which
prompted Ohio State to respond, in part, with a privilege log
identifying a large number of documents as subject to either the
attorney-client privilege or the work product doctrine.

Mr.

Waters then filed a motion to compel an in camera review, making
a number of points about the sufficiency of the description of
the claims of privilege which appear on the privilege log, and
also raising some substantive issues based on the information
which does appear there.

The Court’s review does, to a great

extent, cure issues about how specific the log’s descriptions
are; the Court has now been able to review each logged document
in its entirety and can determine the reasons why each was
claimed to be privileged even if the log was less than precise on
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that question.

What remains is Mr. Waters’ challenge to some of

the substantive components of the University’s claim of
privilege.
One of these issues involves the University’s retention of a
public relations firm to assist it in crafting its public
announcements about the investigation which led to the
termination of Mr. Waters’ employment.

A number of documents

were either sent to or prepared by that firm.

As this Court has

observed in another case, it is “generally true” that sharing
attorney-client privileged communications with a public relations
firm is a waiver of the privilege.

See DRFP, LLC v. Republica

Bolivariana de Venezuela, 2015 WL 6122988, *2 (S.D. Ohio Oct. 19,
2015), citing Egiazaryan v. Zalmayev, 290 F.R.D. 421, 431
(S.D.N.Y. 2013).

In its memorandum (Doc. 62), the University

addresses the issue with both legal arguments and an affidavit.
The Court will examine each.
The affidavit, sworn to by Christopher Culley, Senior Vice
President and General Counsel to the University, says the
following.

Mr. Culley first states that the University

reasonably anticipated litigation as early as May 23, 2014, when
he and the Office of Legal Affairs began to counsel the
University about certain Title IX complaints which implicated Mr.
Waters or the marching band.

As part of that process, the

University “retained consultants, including” The Edelman Company
and The Curtis Media Group.

Their responsibilities “included

closely monitoring the situation and providing feedback in order
to assist myself and the Office of Legal Affairs in providing the
University with legal advice.”

Culley Affidavit, at ¶7.

Later,

the University retained the Sports Conflict Institute to help
assess the band program and to assist the Office of Legal Counsel
to advise administrators and the Trustees about “compliance with
applicable laws and regulations, in anticipation of litigation.”

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Id. at 9.

Ohio State’s legal argument can be capsulized in this

sentence in its memorandum: “Communications involving the
consultants are also protected by the attorney-client privilege
when the consultants are retained ‘for the express purpose of
assisting its counsel in providing legal advice.’” Doc. 62, at
12, citing Graff v. Haverhill North Coke Company, 2012 WL 5495514
(S.D. Ohio Nov. 13, 2012).
Graff was a case in which four plaintiffs sued a coke
processing company, asserting claims under various environmental
statutes.

During the course of discovery, a dispute arose over

some allegedly privileged documents.

The Court held that certain

audit reports prepared in order to facilitate the giving of legal
advice were covered by the attorney-client privilege, noting that
the key question was, once a client seeks legal advice from its
attorney, “whether the communications [with the consultant] were
related to the request for legal advice ....”

Finding that at

least some of the audit reports met that test, the Court refused
to order their production.
Graff is of limited applicability here because there is a
large factual difference between environmental audit reports
prepared by an engineering consultant and public relations advice
given to a university which is fully aware that a decision it is
about to make will spark great public and media interest.

As the

Egiazaryan court noted, “[c]ase law makes clear that ‘[a] media
campaign is not a litigation strategy.’ Haugh v. Schroder Inv.
Mgmt. N. Am. Inc., 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25,
2003) (‘Some attorneys may feel it is desirable at times to
conduct a media campaign, but that does not transform their
coordination of a campaign into legal advice.’).”
290 F.R.D. at 431.

Egiazaryan,

If Mr. Culley, even though he was legal

counsel, involved the public relations firms not as part of his
effort to provide legal advice to the University, but as part of

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an effort to craft announcements which would be more palatable to
the media or the public, he was not using the consultants in
order to help him as a lawyer, but to help the University as a
public institution anticipating a public relations campaign.
Under that scenario, sharing otherwise privileged documents with
the consultant is a waiver of the attorney-client privilege, and
communications directly with the consultant are not privileged at
all.
Having reviewed the various communications with the public
relations firms, it seems likely that most of them did not
involve those firms’ assisting Mr. Culley or his office in
providing legal advice.

That is not the consultants’ area of

expertise, and advising a client on matters like the timing of
its announcement of a decision or the content of its press
releases or speeches is not legal advice.

On the current state

of the record, it would be difficult for the Court to conclude
that all of these communications were protected by the attorneyclient privilege or that providing the public relations firms
with otherwise privileged documents was not a waiver.
That does not necessarily determine the question of the
documents’ discoverability, however.

The reason that the Court

began its analysis with a recap of the current status of Mr.
Waters’ legal claims is to highlight the fact that, to be
discoverable, information must, in the language of Fed.R.Civ.P.
26(b)(1), be “relevant to any party's claim or defense....”

Even

if the documents were improperly withheld on privilege grounds,
there is still a question about whether any of these public
relations communications are relevant to Mr. Waters’ Title IX
claim.

For the following reasons, the Court holds that they are

not.
The Title IX claim involves comparing the way in which the
University meted out sanctions to male and female employees

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accused of similar misconduct.
Waters was fired.

There is no dispute that Mr.

There is similarly no dispute about the nature

of the misconduct the University has attributed to him.

The real

issues underlying the Title IX claim are whether the University
was (1) faced with similar allegations in other circumstances,
(2) addressed such allegations with female employees, and (3)
treated them differently.

The University’s communications with

its public relations or media consultants do not even remotely
address these subjects.

None of them relate to the time frame in

which the allegedly similar allegations were made against female
employees, nor do they discuss those allegations or the
University’s discipline of those employees.

They are, as one

might expect, exactly the type of communications which a public
relations firm would make in this situation.

They counsel the

University and its personnel about how to put the best spin on
its decision, especially once the University made the decision to
terminate Mr. Waters’ employment and it was clear that a public
announcement had to be provided.

The Court cannot conceive of

how the release of any of these documents would assist Mr. Waters
in proving his Title IX claim, or lead him to the discovery of
evidence which might do so.

Consequently, although the Court

does not necessarily agree with Ohio State that all of its
communications with these various consultants are privileged, it
sees no basis upon which to compel their release.
Next, there are a number of documents which contain
communications from one non-attorney to another.

Some of them

are communications between the University’s Board of Trustees and
either the President, Dr. Drake, or with James B. (Blake)
Thompson, who does not appear from the record either to be an
attorney or to have been functioning in that capacity.

There are

also a number of communications between the Board of Trustees and
President Drake, or among members of the Board.

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Perhaps the most

significant is a memorandum from President Drake to the Board of
Trustees dated July 24, 2014, the day that Mr. Waters’ employment
was terminated.

Ohio State argues that because Mr. Culley was

copied on these communications, they are also privileged.
Although the parameters of the attorney-client privilege are
well-known, it bears repeating here what this Court said in Escue
v. Sequent, Inc., 2012 WL 220204, *4 (S.D. Ohio Jan. 25, 2012):
The purpose of the attorney-client privilege is to
encourage clients to communicate freely and completely
with their attorney. Upjohn Co. v. United States, 449
U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981);
Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct.
1569, 48 L.Ed.2d 39 (1975). The privilege also serves
the purpose of promoting “broader public interests in
the observance of law and administration of justice.”
449 U.S. at 389. The privilege, however, is not
absolute. It applies only where necessary to achieve
its purpose and protects only those communications
necessary to obtain legal advice. 425 U.S. at 403.
There is no question that certain communications among employees
or officers of a corporate client which do not directly involve
an attorney may be privileged; otherwise, the client would be
severely hampered in its efforts to obtain information needed for
the attorney to render legal advice.

Cf. In re Behr Dayton

Thermal Products, LLC, 298 F.R.D. 369, 375 (S.D. Ohio 2013)(a
“communication between non-lawyers is generally not protected
under the attorney-client privilege unless the ‘dominant intent
is to prepare the information in order to get legal advice from
the lawyer.’ Comtide Holdings, LLC v. Booth Creek Mgmt. Corp.,
No. 2:07–cv–1190, 2010 WL 5014483, at *2–3, 2010 U.S. Dist. LEXIS
127903, at *7 (S.D. Ohio Dec. 3, 2010).”).

The group of

documents provided for in camera inspection in this case contain
some of these types of communications.

On the other hand, where

the dominant purpose of such communications is not to secure
legal advice or information requested by counsel, but to make

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some type of policy or business decision, the communication
cannot be insulated from discovery just by sending a copy of it
to a lawyer.

See Humphries v. Pennsylvania R. Co., 144 F.R.D.

177, 178 (N.D. Ohio 1953)(“it is axiomatic that one cannot render
privileged that which is otherwise not privileged merely by
placing it in the hands of his attorney”); see also Andritz
Sprout–Bauer, Inc. v. Beazer E., Inc., 174 F.R.D. 609, 633 (M.D.
Pa. 1997) (“[w]hat would otherwise be routine, non-privileged
communications between corporate officers or employees
transacting the general business of the company do not attain
privileged status solely because in-house or outside counsel is
‘copied in’ on correspondence or memoranda”).
The Court concludes that the communications involving
President Drake and the Board of Trustees on July 24, 2014, are
not privileged.

Document 3778 and its attachment, document 3779,

simply do not involve the gathering of information at the request
of counsel, or providing information to the President or the
Board for the purpose of seeking legal advice.

Further, although

their relevance to the Title IX claim is tangential, they appear
to be relevant enough to be discoverable.

The Court will

therefore order those documents to be produced.

The Court has

examined other such documents, including document 3794, in some
detail, and has concluded that those documents do have the
seeking of legal advice as a dominant purpose, and the privilege
does apply to them.
The last category of documents to be addressed in this Order
are documents which appear to have been either sent or received
by Mr. Waters himself.

Perhaps they are on the log because they

were attached to attorney-client communications, but it is
difficult to tell that from the way in which the documents have
been arranged.

Document 3846 is one example.

Counsel for the

University should review any documents which Mr. Waters either

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wrote or received a copy of to make sure that a privilege has not
been inadvertently claimed with respect to them.
The Court makes a final observation.

The documents

submitted for in camera review do not appear to have been “deduplicated,” and many copies of the same documents were
separately logged, stamped, and included in the review set.

This

made the Court’s task more difficult than it needed to be.
Based on the foregoing, Defendants are ordered, within
fourteen days, to produce a copy of documents 3778 and 3779.

The

motion filed by Mr. Waters with respect to the privilege log
(Doc. 58) is denied in all other respects.

Mr. Waters’ motion

(Doc. 65) for leave to file a corrected amended privilege log is
granted.
MOTION FOR RECONSIDERATION
Any party may, within fourteen 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 question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven 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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