Erickson v. Hocking Technical College et al

Filing 24

Opinion and Order issued re: 3/12/18 Telephonic Discovery Conference; Plaintiffs request for an order compelling Ms. Dioguardis testimony regarding the discussions held during the meetings memorialized in said discovery conference is GRANTED. Signed by Magistrate Judge Chelsey M. Vascura on 3/27/18. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RON ERICKSON,
Plaintiff,
Case No. 2:17-cv-360
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.
HOCKING TECHNICAL COLLEGE, et al.,
Defendants.

OPINION AND ORDER
This matter came before the Court for a telephonic discovery conference on March 12,
2018. (See ECF No. 23.) During that conference, the parties informed the Court that they
disputed whether discussions during certain meetings Nicki Dioguardi (Defendant Hocking
Technical College’s former General Counsel, Human Resources Director, and Vice President of
Risk Management) attended are protected by the attorney-client privilege. Plaintiff, Ron
Erickson (the former President of Defendant Hocking Technical College), seeks to depose Ms.
Dioguardi regarding these discussions, but Defendants object, asserting that the discussions are
protected by the attorney-client privilege. Subsequent to that conference, the parties conducted
limited discovery relating to the capacity in which Ms. Dioguardi was operating during the
meetings at issue. The parties then submitted letter briefs in camera. This matter is now before
the Court upon the parties’ letter briefs and supporting documentation. For the reasons that
follow, the Court finds that the at-issue communications are not protected by the attorney-client

privilege. Accordingly, Plaintiff’s request for an order compelling Ms. Dioguardi’s testimony
regarding the discussions during these meetings is GRANTED.
I.
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
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.), cert.
denied, 525 U.S. 820 (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

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protection is waived.” Reed, 134 F.3d at 355–56 (citing Fausek v. White, 965 F.2d 126, 129 (6th
Cir.), cert. denied sub nom. Selox, Inc. v. Fausek, 506 U.S. 1034 (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, at *2 (N.D. Ill. June 19, 2008) (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”).
Furthermore, “[t]he burden of establishing the existence of the privilege rests with the
person asserting it.” United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). Simply
asserting that information is privileged “is insufficient to meet the burden.” In re Trans–Indus.,
Inc., No. 1–10 MC 24, 2011 WL 1130410, at *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 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,

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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.”).
II.
In this case, Plaintiff seeks to depose Ms. Dioguardi regarding discussions during a
September 12, 2014 meeting and also six executive sessions. The Court considers each in turn.
A.

September 12, 2014 Meeting
Plaintiff first seeks to depose Ms. Dioguardi regarding discussions during a September

12, 2014 meeting between Plaintiff, Ms. Dioguardi, Andy Stone, and Keith Taulbee. Messrs.
Stone and Taulbee serve on Defendant Hocking Technical College’s Board of Trustees. Plaintiff
represents that he called the meeting in order to “discuss [Gina] Fetty’s employment, not for
legal advice.” (Pl.’s In Camera Br. 6 (citing Erickson Decl. Ex. 3 at ¶ 5).)
Defendants contend that the attorney-client privilege attaches to that meeting because
“Plaintiff invited Dioguardi [to the meeting] for the purpose of gathering or soliciting legal
advice for the college.” (Defs.’ In Camera Br. 8-9.) In her Declaration, Ms. Dioguardi states
that Plaintiff “told [her] that the purpose of the meeting was to share his decision to terminate
Chief Financial Officer Gina Fetty.” (Dioguardi Decl. ¶ 6.) Defendants point out that both Ms.
Dioguardi and Mr. Taulbee believe that Plaintiff invited Ms. Dioguardi to the meeting not as a
human resources matter, but “to attend and gather information so that she could advise the board
concerning the legal issues resulting from the termination decision.” (Defs.’ In Camera Br. 8-9
(citing Dioguardi Decl. at ¶ 7; Taulbee Decl. at ¶ 4.) Defendants further submit that an email
Plaintiff sent on September 15, 2014, that he marked “Attorney-Client Privileged Information,”

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(Id. at Ex. 5), serves as additional evidence showing that Plaintiff intended the communications
during the September 12, 2014 meeting to be subject to the attorney-client privilege. (Id. at 5.)
The Court finds that Defendants have failed to satisfy their burden to demonstrate the
existence of the attorney-client privilege with respect to the September 12, 2014 meeting. In
support of their arguments, Defendants rely upon Alomari v. Ohio Department of Public Safety,
No. 2:11-cv-00613, 2013 WL 4499478 (S.D. Ohio Aug. 21, 2013). The present case is
distinguishable from Alomari. In Alomari, the record contained evidence reflecting that the
plaintiff was aware of the purposes for which counsel was present. Id. at *3 (noting that
“Plaintiff’s testimony indicates that he was sufficiently aware that the purpose of the meeting
was to provide information to counsel”). Here, in contrast, the record reflects that Plaintiff called
the meeting to “discuss Fetty’s employment, not for legal advice.” (Pl.’s In Camera Br. 6 (citing
Erickson Decl. Ex. 3 at ¶ 5).) Consistently, Ms. Dioguardi states that Plaintiff “told [her] that the
purpose of the meeting was to share his decision to terminate Chief Financial Officer Gina
Fetty.” (Dioguardi Decl. ¶ 6.) Significantly, Ms. Dioguardi does not indicate that Plaintiff asked
her to attend in her capacity as a legal advisor rather than in her capacity as Human Resources
Director or Vice President of Risk Management. Nor does Ms. Dioguardi state that she was
asked to provide legal advice; to the contrary, she states that she “did not speak and no one asked
[her] any questions.”1 (Id. at ¶ 7.) That Ms. Dioguardi subjectively believed that she was at the
meeting in her capacity as counsel to gather information is insufficient to confer the privilege.

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The Court notes that Plaintiff’s assertion that the communications are not subject to the
attorney-client privilege because Ms. Dioguardi did not give any legal advice at the meeting
lacks merit. (See Pl.’s Br. at 5.) Although an important consideration, whether legal advice is
rendered as a part of a communication is not dispositive. See Reed, 134 F.3d 355-56 (providing
test for attorney-client privilege, which includes communications where legal advice is merely
sought).
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See United States ex rel. Parikh v. Premera Blue Cross, No. C01-476P, 2006 WL 3733783, at
*4, 7-8 (W.D. Wash. Dec. 15, 2006) (attorney’s declaration that he attended meetings as
representative of legal department did not resolve attorney-client privilege question when
evidence did not show that other employees in attendance understood him to be acting in legal
role). See also Reed, 134 F.3d at 355 (providing that the first element of attorney-client privilege
is that legal advice be sought); Alomari, 2014 WL 12651191, at *4 (stating that the Court “did
not merely rely on one party’s subjective belief as to whether the communication is privileged,”
but also on “on the testimony of Plaintiff and Plaintiff’s supervisor”). In addition, the September
15, 2014 email, drafted three days after the at-issue meeting, does not operate to retroactively
render the earlier, otherwise-unprivileged discussions subject to the attorney-client privilege.2
In summary, the Court finds that discussions during the September 12, 2014 meeting are
not protected by the attorney-client privilege.
B.

Executive Sessions
Plaintiff next seeks to depose Ms. Dioguardi regarding discussions during six executive

sessions held on the following dates: May 27, 2014; June 26, 2014; August 5, 2014; September
23, 2014; October 2, 2014; and October 27, 2014. Defendants assert that all discussions during
these meetings are protected by the attorney-client privilege. In support of their argument,
Defendants cite Ms. Dioguardi’s declaration in which she states that “[w]hen the Board invited
her into the meetings, [she] believed [she] was there in [her] role as legal advisor to the College
and to advise the Board on the issues they entered into executive discussion to discuss.” (Defs.’
Br. at 11 (citing Dioguardi Decl. ¶ 11).) Defendants also highlight a letter Ms. Dioguardi
authored and sent to the Board on September 22, 2014, in which Ms. Dioguardi informs the
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Moreover, the September 15, 2014 email relates to a conversation that happened earlier
that day, not the September 12, 2014 meeting that is at issue here.
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board that she is available as their counsel to assist them. (Defs.’ Br. at 11 (citing Dioguari Decl.
Ex. 1).)
The Court likewise finds that Defendants have failed to satisfy their burden to
demonstrate the existence of the attorney-client privilege with respect to the six at-issue
executive sessions. As set forth above, Ms. Dioguardi’s subjective beliefs, without more, do not
satisfy Defendants’ burden. Once again, the record contains no evidence reflecting that Ms.
Dioguardi was asked to attend in her capacity as a legal advisor rather than in her capacity as
Human Resources Director or Vice President of Risk Management. Nor does record reflect that
Ms. Dioguardi provided or was asked to provide legal advice at these meetings. The September
22, 2014 letter Ms. Dioguardi authored does not persuade the Court to reach a different
conclusion. Although Ms. Dioguardi informs the board that she is available to act as counsel
and provide legal advice, it contains no indication that she was invited to the executive sessions
for the purpose of providing legal advice.
In summary, the Court finds that discussions during the six at-issue executive sessions are
not protected by the attorney-client privilege.
III.
For the reasons set forth above, the Court finds that Defendants have not satisfied their
burden to demonstrate that the discussions during the September 12, 2014 meeting and the six atissue executive sessions are protected by the attorney-client privilege. Accordingly, Plaintiff’s
request for an order compelling Ms. Dioguardi’s testimony regarding the discussions during
these meetings is GRANTED.

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IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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