Hobart Corporation et al v. Waste Management of Ohio, Inc. et al

Filing 107

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. Plaintiffs' Motion to Compel Discovery (Doc. 104 ) is GRANTED; and 2. Defendant Dayton Power & Light Co.'s (DP&L's) Motion to Quash Subpoena And Exclude Use Of Information Derived From Ex Parte Communications By Plaintiffs' Counsel With DP&L Employee (Doc. 105 ) is DENIED. Signed by Magistrate Judge Sharon L Ovington on 3/23/12. (cib1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
HOBART CORPORATION, et al.,
Plaintiffs,

:

WASTE MANAGEMENT OF
OHIO, INC., et al.,

Case No. 3:10cv00195

:

vs.

:

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

:
:

Defendants.
:

DECISION AND ENTRY

I.

INTRODUCTION
This CERCLA1 case is before the Court upon Plaintiffs’ Motion to Compel

Discovery And/Or Opposition To Anticipated Motion To Quash Subpoena Or For Protective
Order By Defendant Dayton Power & Light Co. (Doc. #104), Defendant Dayton Power &
Light Co.’s (DP&L’s) Motion to Quash Subpoena And Exclude Use Of Information Derived
From Ex Parte Communications By Plaintiffs’ Counsel With DP&L Employee (Doc. #105),
DP&L’s Response In Opposition To Plaintiffs’ Motion To Compel (Doc. #106), and the
record as a whole.

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Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§96019675. See Doc. #s 69, 71.

On March 9, 2012, the undersigned Judicial Officer held an informal telephone
discovery conference pursuant S.D. Ohio Civ. R. 37.1. The conference did not resolve the
present discovery dispute, which involves contact between Plaintiffs’ counsel and a current
DP&L employee. Since the parties seek to expeditiously move forward with discovery,
further briefing is unwarranted.

II.

BACKGROUND
Plaintiffs’ Second Amended Complaint asserts claims of CERCLA contribution

against DP&L (and others). The claims arise from allegations of hazardous waste disposal
at the South Dayton Dump and Landfill Site (the Site) in Moraine, Ohio. Plaintiffs allege, in
part, “Defendant DP&L arranged for the disposal of wastes at the Site, including waste
containing hazardous substances from its facilities and operation located in and around
Dayton. DP&L contributed to Contamination at the Site through its disposal of wastes that
included hazardous substances at the Site. . . .” (Doc. #69, ¶31). DP&L denies this
allegation. (Doc. #74, ¶32).
The parties’ present dispute concerns Plaintiffs’ desire (and subpoena) to depose a
current DP&L employee Charles L. Fields. DP&L opposes the proposed deposition as a
sanction for ethical misconduct committed, DP&L asserts, by one of Plaintiffs’ attorneys,
Leslie G. Wolfe, Esq. DP&L contends that attorney Wolfe violated Rule 4.2 of the Ohio
Rule of Professional Conduct by contacting and communicating ex parte with Mr. Fields – a
current DP&L employee – about factual matters at issue in this case. Plaintiffs perceive no

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ethical violation and seek to compel Mr. Fields’ deposition.
Remarkably, Mr. Fields has been a DP&L employee since 1962. (Doc. #105, Exhibit
A). His present job title is “AC Network Splicer 2,” id., apparently in DP&L’s electrical
construction department. In the past, DP&L employed him as a truck driver.
DP&L relies on Mr. Fields’ affidavit. Mr. Fields states that a former DP&L
employee, Jim Tharpe, phoned him in early 2012. Mr. Fields had known Mr. Tharpe when
they both worked at DP&L. Mr. Tharpe told Mr. Fields about the present case and predicted
that Mr. Fields would probably receive a call from attorney Wolfe. Mr. Fields continues:
7.

In early 2007, after my telephone conversation with Mr. Tharpe, I received
two telephone calls from Leslie Wolfe, who identified herself as an attorney
representing parties in a lawsuit against DP&L involving the clean up of the
South Dayton Dump.

8.

In the first telephone call with Ms. Wolfe, she introduced herself and asked if
she could call me back to discuss my personal experiences with the South
Dayton Dump. I indicated that she could call me back. During the first call,
Ms. Wolfe did not ask me any specific questions about the South Dayton
Dump. I indicated that she could call me back. During this first call, Ms.
Wolfe did not ask me any specific questions about the South Dayton Dump.

9.

In second telephone call with Ms. Wolfe, she asked me if I was an employee
of DP&L, and I indicated that I was still employed at DP&L. I do not recall
Ms. Wolfe asking me whether I was represented by legal counsel.

(Doc. #105, Exhibit A). Plaintiffs, presumably through attorney Wolfe, represent in their
Brief, “One of the attorneys for Plaintiffs contacted Mr. Fields, identified herself as counsel
for Plaintiffs in this action, and asked whether Mr. Fields was represented and, if not,
whether he consent[ed] to speak to her concerning his past duties as a truck driver for
DP&L. Mr. Fields confirmed that he was not represented by counsel and agreed to answer
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questions about his activities as a truck driver for DP&L.” (Doc. #104, PageID at 980).
Returning to Mr. Fields’ affidavit, he explains:
10.

During the second telephone call with Ms. Wolfe, she asked me questions
about my experiences and knowledge of the South Dayton Dump, including
whether I ever hauled any fly ash or other waste to the South Dayton Dump
when I worked at DP&L’s Longworth Steam Station facility in the 1960's. I
answered Ms. Wolfe’s questions.

11.

During the second telephone call with Ms. Wolfe, she told me that she would
have to issue a subpoena to me . . . .

(Doc. #105, PageID at 1022-23). A subpoena followed in early February 2012.
In late February 2012, after initial scheduling hiccups, DP&L’s counsel agreed to
proceed with Mr. Fields deposition (except for its location). The parties agreed to proceed
with the deposition on March 13, 2012. (Doc. #104, PageID at 990).
The current disagreement began with a letter dated March 6, 2012. DP&L’s counsel
objected “to the subpoena served upon its employee, and our client, Charles Fields.” Id. at
997. DP&L’s counsel also wrote, “The purpose of this objection is to provide notice that we
intend to seek to suspend Mr. Field[s’] deposition in order to pursue appropriate remedies
for a potential violation of Rule. 4.2 of the Ohio Rules of Professional Conduct by Plaintiffs’
counsel. . . .” Id. Additionally, DP&L’s counsel invited Plaintiffs’ counsel to jointly present
the matter to the Court in order to seek its guidance as to the most efficient mode of
adjudication. . . .” Id. The ensuing disagreement led to the informal telephone discovery
conference (referenced above), and the presently pending motions.

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III.

DISCUSSION
The Ohio Supreme Court’s Rules of Professional Conduct apply in this case. See

Rule IV(B), Model Federal Rules of Disciplinary Enforcement (adopted by this Court and
attached to the S.D. Ohio Civil Rules); see also Mezibov v. Allen, 411 F.3d 712, 719 n.4 (6th
Cir. 2005); Wasmer v. Ohio Department of Rehab & Corrs., 2007 WL 593564 at *2 (S.D.
Ohio, Feb. 21, 2007)(Kemp, M.J.). The pertinent Ohio Rule of Professional Conduct states
– with italics in original:
RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
In representing a client, a lawyer shall not communicate about
the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer
has the consent of the other lawyer or is authorized to do so by
law or a court order.
The main Rule 4.2 issue in the parties’ present dispute concerns whether attorney
Wolfe knew Mr. Fields was represented by DP&L’s attorneys when she communicated with
him ex parte.
“Counsel representing an interest adverse to a corporation may communicate without
the consent of a corporation’s lawyer with certain current employees and former employees
of the corporation, even when corporate counsel asserts a blanket representation of the
corporation and all its current and former employees.” Ohio Supreme Ct. Bd of Grievances
and Discipline, Opin. No. 2005-3, 2005 WL 375343 at *4 (Feb. 4, 2005)(copy attached to
Doc. #104); see Paulson v. Plainfield Trucking, Inc., 210 F.R.D. 654, 657-58 (D. Minn.

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2002)(rejecting total ban on ex parte communications with an organization’s current
employees). Comment 7 following Rule 4.2 sheds light on how and when such knowledge
arises. Comment 7 explains in part (emphasis added):
In the case of a represented organization, the rule prohibits
communications with a constituent of the organization, who supervises,
directs, or regularly consults with the organization’s lawyer concerning the
matter or has authority to obligate the organization with respect to the matter
or whose act or omission in connection with the matter may be imputed to
the organization for purposes of civil . . . liability. . . .

As to the purpose of Rule 4.2, Wasmer v. Ohio Dept. Of Rehabilitation and
Corrections explains:
As the courts have consistently held, the purpose of a prohibition
against ex parte communications such as that embodies in Rule 4.2 is to
protect an organization from improper disclosures of attorney-client
communications or untoward intrusions into the attorney-client relationship in
the context of an organization’s ability to prosecute and defend litigation. It is
not designed to protect an organization against disclosure of facts which may
be prejudicial to its litigation position. . . . “[T]he purposes of the rule are best
served when it prohibits communication with those employees closely
identified with the organization in the dispute . . . . those employees
empowered to make litigation decisions, and those employees whose acts or
omissions are at issue in the case.”
2007 WL 593564 at *4 (S.D. Ohio, Feb. 21, 2007) (Kemp, M.J.)(internal citations omitted
***
Plaintiffs point out that during the Wolfe/Fields communications, Mr. Fields
indicated that “he had no supervisory or managerial responsibilities at DP&L.” (Doc. #104,
PageID at 981). DP&L does not specifically assert that Mr. Fields has ever held supervisory
or managerial duties while employed by DP&L. The record also lacks probative evidence
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indicating that Mr. Fields falls within the initial groups of current employees comment 7
describes. He was not (1) a supervisor, director, or DP&L constituent who regularly
consulted with DP&L’s lawyers concerning this case, or (2) a DP&L constituent holding the
authority to obligate DP&L in this case.
The parties’ dispute thus boils down to whether attorney Wolfe violated Rule 4.2 by
communicating ex parte with Mr. Fields because he was a DP&L constituent “whose act or
omission in connection with the matter may be imputed to the organization for purposes of
civil . . . liability.”
DP&L argues that attorney Wolfe’s ex parte contact with Mr. Fields violated Rule 4.2
because he was such a person – again, a constituent “whose act or omission in connection
with the matter may be imputed to the organization for purposes of civil . . . liability.” Id. at
1012. DP&L emphasizes that Mr. Fields was not an observer to potentially hazardous waste
dumping at the Site; he was an actor – a DP&L-employed truck driver – who recalls driving
DP&L’s fly ash to the Site. Id.
Plaintiffs contend that Rule 4.2 did not prohibit attorney Wolfe’s ex parte contact
with Mr. Fields because his factual recollections of hauling waste to the Site cannot be
imputed to DP&L. Id. at 983. They assert that Mr. Fields “made no statement which could
be offered against DP&L as an admission. He was strictly a truck driver with factual
information regarding the delivery of materials to the South Dayton Dump Site.” Id. at 984
(footnote omitted).
Plaintiffs’ contentions overlook or minimize the impact Mr. Fields’ potential
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testimony might have on DP&L’s liability. His potential testimony – if fully credited and
based on the present record – would reveal that he drove DP&L’s fly ash and other waste
materials to the South Dayton Site for disposal during the 1960s. See Doc. #105, Exh. C,
PageID at 1030; see also Doc. #104, PageID at 980. Such testimony would tend to support
Plaintiffs’ allegations, in their Second Amended Complaint, that “DP&L contributed to
Contamination at the Site through its disposal of wastes that included hazardous substances
at the Site” (Doc. #69, ¶31); and “DPL was a regular customer at the Site, and had its own . .
. access to the Site for disposal of waste materials, including wastes containing hazardous
substances,” id., ¶32. Such evidence could likewise be offered to support Plaintiffs’ claims
that DP&L, together with other Defendants, is liable under theories of CERCLA
contribution. See id., PageID at 765-67. In other words, DP&L is indubitably correct to
assert that Plaintiffs “hope to impute his [Mr. Fields’] acts to DP&L in order to establish the
central issue in this case: Whether DP&L disposed of hazardous substances in the Dump
[Site].” (Doc. #105, Page ID at 1004). Indeed, Mr. Fields’ affidavit places him within the
group of current employees Rule 4.2, comment 7 shields from ex parte communications –
those “whose act or omission in connection with the matter may be imputed to the
organization for purposes of civil or criminal liability.”
Plaintiffs contend, citing Paulson v. Plainfield Trucking, Inc., 210 F.R.D. 654, 657-58
(D. Minn. 2002), “Rule 4.2 clearly permits ex parte interviews of current employees who are
‘mere witnesses’ to an event for which the organization is being sued.” (Doc. #104, PageID
at 984). But, based on the present record, Mr. Fields was more than an observer of alleged
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disposal of hazardous waste by DP&L at the Site. He participated in the alleged hazardous
disposal, or under attorney Wolfe’s brief description, he “formerly drove DP&L’s fly ash
from several of its power generating stations to the South Dayton Dump site.” (Doc. #105,
Exh. C at 1030 (counsel’s Feb. 12, 2012 email)). To this extent, Paulson’s “mere witness”
language does not apply to Mr. Fields.
Although the above points towards the conclusion that attorney Wolfe ran aground on
Rule 4.2 when she spoke ex parte to Mr. Fields, the issue of whether attorney Wolfe violated
Rule 4.2 by contacting and speaking ex parte with Mr. Fields remains a close question. Too
much remains unclear. The record can be reasonably read as indicating that attorney Wolfe
did not have sufficient evidence to know with certainty that Mr. Fields was involved with
disposal of hazardous waster materials at the Site until she spoke with him. Before that
time, her information about Mr. Fields derived from only one other source – Mr. Tharpe.
The record is presently silent about the source of Mr. Tharpe’s information about Mr. Fields.
Was Mr. Tharpe reporting his own personal knowledge about Mr. Fields’ activities? Was he
reporting what Mr. Fields, or someone else, had told him about Mr. Fields’ activities? Mr.
Fields’s affidavit does not address these questions. And he provides scant information about
the extensiveness of attorney Wolfe’s second conversation with him. He merely explains
that attorney Wolfe asked him “questions about [his] experiences and knowledge of the
South Dayton Dump, including whether [he] ever hauled fly ash or other waste to the South
Dayton Dump when I worked at DP&L’s Longworth Steam Station facility in the 1960's.
[He] answered Ms. Wolfe’s questions.” (Doc. #105, Exh. A, ¶10). Did she ask two
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questions, ten questions, fifty questions? Did she probe the extent of Mr. Fields’ purported
activities or personal knowledge? Or, did she merely confirm that Mr. Fields is a current
DP&L employee “whose acts or omissions are at issue in the case,” Wasmer, 2007 WL
593564 at *4, and once learning this, did she immediately terminate her questions and seek
to depose him with DP&L’s counsel? The record at present is simply inadequate to answer
such questions with accuracy.
And these questions are significant for three reasons: First, Rule 4.2's purpose of
preventing “untoward intrusions into the attorney-client relationship in the context of an
organization’s ability to prosecute and defend litigation,” Wasmer, 2007 WL 593564 at *4,
is tempered by the warning that Rule 4.2 “is not designed to protect an organization against
disclosure of facts which may be prejudicial to its litigation position.” Id.; see Curley v.
Cumberland Farms, Inc., 134 F.R.D. 77, 82 (“It must be recalled that RPC 4.2 is an ethical
rule, not a rule through which corporations gain the ability to control the flow of information
to opposing parties.” (italics in original) (discussing same “may be imputed” aspect of Rule
4.2 at issue in the instant case)). Second, Plaintiffs assert that DP&L “failed to provide
Plaintiffs with any discovery concerning its arrangements for the disposal of hazardous
substances at the South Dayton Site . . . .” (Doc. #104, PageID at 980). The record today –
it must be stressed – contains no specific information or arguments by counsel about this. At
best for DP&L, it might not excuse a violation of Rule 4.2. At best for Plaintiff, it might
justify attorney Wolfe’s effort to confirm ex parte Mr. Fields’ status as a witness worth
deposing before revealing that they know about him to DP&L. Again, however, the record
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is not adequate to analyze which party is due its best result.
Regardless of how any or all of the above matters play out in the present case, the
record does not support the issuance of the protective order DPL seeks. Even assuming,
arguendo, that attorney Wolfe violated Rule 4.2 by communicating ex parte with Mr. Fields,
the appropriate sanction should not preclude his deposition. DP&L argues:
Here, quashing the subpoena, excluding evidence and forbidding any
use of the information obtained from ex parte interviews is warranted. Unlike
Summers, Wasmer, and Curatola, the violations here were willful, repeated,
and unremedied. Counsel failed to avail themselves of reasonable alternatives
to direct contact, and failed to terminate the interview once Mr. Fields
confirmed that he was a current employee of DP&L. . . .
(Doc. #105, PageID at 1019). Rule 4.2, however, did not require attorney Welch to stop her
ex parte communication with Mr. Fields once he confirmed his status a current DP&L
employee. Both the plain language of Rule 4.2 and comment 7 do not impose a blanket
prohibition against all ex parte communications with current DP&L employees. See Ohio
Supreme Ct. Bd of Grievances and Discipline, Opin. No. 2005-3, 2005 WL 375343 at *4
(Feb. 4, 2005)(copy attached to Doc. #104); see Paulson, 210 F.R.D. at 657-58. The record,
moreover, is not so gloomy as DP&L depicts. Mr. Fields’ affidavit lacks enough detail to
establish that attorney Wolfe engaged in repeated violations of Rule 4.2. There is one ex
parte communication at issue. A willful violation is hard to see if attorney Wolfe terminated
her communication when Mr. Fields confirmed his status as a DP&L truck driver who
participated in disposing of hazardous waste materials at the Site.
In the end, whatever sanction that might eventually prove appropriate – including,

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perhaps, excluding Mr. Fields’ testimony from trial, see Curley, 134 F.R.D. at 82 – the
present record does not support sanctioning Plaintiffs by stopping counsel from deposing
Mr. Fields or excluding information gained from attorney Wolfe’s ex parte communications
with him.

IT IS THEREFORE ORDERED THAT:
1.

Plaintiffs’ Motion to Compel Discovery (Doc. #104) is GRANTED; and

2.

Defendant Dayton Power & Light Co.’s (DP&L’s) Motion to Quash Subpoena
And Exclude Use Of Information Derived From Ex Parte Communications By
Plaintiffs’ Counsel With DP&L Employee (Doc. #105) is DENIED.

March 23, 2012
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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