Rieger v. General Dynamics

Filing 47

ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER FORBIDDING THE DISCLOSURE OF HIS SEALED STATE CRIMINAL CONVICTION (DOC. 37 ); AND (2) DENYING AS MOOT PLAINTIFF'S MOTION TO POSTPONE HIS APRIL 29, 2014 DEPOSITION (DOC. 45 ). Signed by Magistrate Judge Michael J Newman on 4/25/14. (cib1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOSEPH M. RIEGER,
Plaintiff,

Case No.: 3:13-cv-402

vs.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC.,

Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
ORDER: (1) GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE
ORDER FORBIDDING THE DISCLOSURE OF HIS SEALED STATE CRIMINAL
CONVICTION (DOC. 37); AND (2) DENYING AS MOOT PLAINTIFF’S MOTION TO
POSTPONE HIS APRIL 29, 2014 DEPOSITION (DOC. 45)
Now before the Court is pro se Plaintiff’s motion (doc. 37) for the Court to determine
whether he must disclose in discovery a state court criminal conviction that was sealed and
expunged pursuant to Ohio law. Doc. 37. The Court has liberally construed this request as a
motion for a Protective Order pursuant to Fed. R. Civ. P. 26(c). Accord El Bey v. Roop, 530 F.3d
407, 413 (6th Cir. 2008). Defendant has filed a memorandum in opposition (doc. 38) and
Plaintiff submitted a reply (doc. 44). Plaintiff also filed a document that was styled as a motion
for the Court to consider additional evidence when ruling on his motion for a Protective Order
(doc. 40), to which Defendant filed a memorandum in opposition (doc. 41). The Court redocketed these filings as additional documentation relating to Plaintiff’s underlying motion for a
Protective Order. Doc. 42. Finally, Plaintiff filed a motion to postpone his April 29, 2014
deposition pending the Court’s ruling on his motion for a Protective Order. Doc. 45.
I.
The instant motion arises from one or more of Defendant’s discovery requests concerning
Plaintiff’s prior involvement in the civil or criminal justice system. See doc. 36 at PageID 130;
doc. 39 at PageID 169. The Court addressed these discovery requests and Plaintiff’s objections

thereto during a telephone conference on March 7, 2014. See doc. 30. Defendant modified the
requests to only seek relevant information since January 1, 2005, and the Court ordered Plaintiff
to respond accordingly. See id. During another telephone conference on March 25, 2014,
Defendant advised the Court that Plaintiff’s responses remained outstanding. Doc. 39 at PageID
169. Plaintiff subsequently filed the instant motion on March 31, 2014. Doc. 37. The Court
ordered Plaintiff to produce all responsive information and documents that he sought to protect
from disclosure for an in camera review. Doc. 39 at PageID 170. Plaintiff thereafter submitted
additional documents to the Court, presumably also for an in camera review, that pertain to a
non-party as referenced in Plaintiff’s additional filing on the matter.1 Doc. 40.
As construed by the Court, Plaintiff moves for a Protective Order forbidding the
disclosure of a state court conviction that was sealed and expunged pursuant to Ohio Rev. Code
Ann. § 2953.32. Doc. 37 at PageID 160. The documentation produced by Plaintiff for in
camera review reveals that on January 28, 2014, the Kettering Municipal Court issued an Order
sealing and expunging the conviction record pursuant to Ohio Rev. Code Ann. § 2953.32 of a
case that culminated in a August 31, 2005 criminal conviction.
Among other considerations, the Court ruling on the application to seal and expunge must
determine “whether criminal proceedings are pending against the applicant” and “whether the
applicant has been rehabilitated to the satisfaction of the [C]ourt.” Ohio Rev. Code Ann.
§ 2953.32(C)(1). Pursuant to Ohio law, if the applicant is successful “[t]he proceedings in the
case shall be considered not to have occurred and the conviction or bail forfeiture of the person
who is the subject of the proceedings shall be sealed.” Id. § 2953.32(C)(2). Further, “[i]n any
application for employment, license, or other right or privilege, any appearance as a witness, or
any other inquiry . . . a person may be questioned only with respect to convictions not sealed . . .
1

Having reviewed these documents, the Court finds they are not relevant to the instant issue and
they were not considered in issuing this ruling.

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unless the question bears a direct and substantial relationship to the position for which the person
is being considered.”2 Id. § 2953.33(B)(1).
In support of his motion to exclude the conviction from disclosure, Plaintiff points to
Federal Rule of Evidence 609(c)(1). Doc. 37 at PageID 160-61. This evidentiary rule excludes
otherwise admissible evidence of a criminal conviction for impeachment purposes if “the
conviction has been the subject of a . . . certificate of rehabilitation, or other equivalent procedure
based on a finding that the person has been rehabilitated, and the person has not been convicted
of a later crime punishable by death or imprisonment for more than one year.” Fed. R. Evid.
609(c)(1).
The parties have failed to cite, and the Court has been unable to find, any published
federal cases that examine whether a sealed and expunged record of conviction under Ohio Rev.
Code Ann. § 2953.32 qualifies for the rehabilitation exception of Fed. R. Evid. 609(c)(1).
Because such a determination is premature at this stage in the litigation and is an issue ultimately
reserved to the trail judge, the Court expresses no opinion on this evidentiary issue.
II.
Defendant opposes the motion and argues that Plaintiff’s conviction is discoverable
notwithstanding the Ohio court’s Order sealing and expunging the conviction record. Doc. 38.
Defendant argues that such evidence may be relevant for an after-acquired evidence defense. Id.
at PageID 165-66. Specifically, Defendant submits that the evidence is relevant to determine
whether Plaintiff was truthful on his employment application. Id.; see McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352, 360-63 (1995).

Defendant also argues that the criminal

conviction is discoverable under an exception in the statute itself; namely, that “[i]n any
application for employment . . . a person may be questioned only with respect to convictions not
2

The omitted portions contain exceptions and provisions that are not relevant here.

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sealed . . . unless the question bears a direct and substantial relationship to the position for which
the person is being considered.” § 2953.33(B)(1). Finally, Defendant argues that Plaintiff would
receive an unjustifiable benefit if he is permitted to lie on his employment application about a
conviction, subsequently seal and expunge the conviction to prevent his employer from later
discovering this during his term of employment, and prevent its disclosure in a lawsuit premised
on his employment. Doc. 38 at PageID 166.
Plaintiff’s reply brief raises several additional arguments. First, Plaintiff argues that the
discovery request at issue was served by Defendant’s counsel on January 29, 2014, which is after
the record was sealed and expunged. Doc. 44 at PageID 178. Plaintiff is correct in this
assertion, but fails to mention that the record was sealed and expunged literally the day before,
on January 28, 2014.
The Sixth Circuit addressed these concerns in Boyd v. Bressler, 18 F. App’x 360 (6th Cir.
2001). The plaintiff in Boyd had a conviction sealed pursuant to § 2953.32, but evidence of this
conviction was introduced in a briefing filed as part of a separate trademark litigation filed
against Boyd in a New York federal court. Id. at 363. Boyd raised no objections the inclusion of
his sealed conviction in the New York court, and the case ultimately resulted in a default
judgment against him. Id. Boyd then brought suit in an Ohio federal court against the opposing
parties and their counsel premised on the reference to his sealed conviction in the trademark
litigation. Id. The Sixth Circuit observed that, “[b]ased on §§ 2953.32(B)(2) and 2953.33(B),
Boyd could have protected his right to conceal his . . . conviction by petitioning the district court
in New York to strike the information from [defendants’] motion and any other submissions in
the trademark case.” Id. at 368.
The proper inquiry here is whether the information that Plaintiff seeks to prevent from
disclosure is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.

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Civ. P. 26(b)(1).

Notwithstanding that Defendant seeks relevant information, the Court

determines that disclosure of Plaintiff’s sealed and expunged criminal record is not proper in this
case. See Fed. R. Civ. P. 26(c). Based on principles of comity to Ohio law and the Sixth
Circuit’s discussion in Boyd, the Court finds that Plaintiff need not disclose information related
to his sealed and expunged criminal conviction stemming from a date of conviction of August
31, 2005. The Court stresses the narrow scope of its ruling. Plaintiff is advised that this ruling
does not apply to any other civil or criminal cases in which he may have been involved and
which were not the subject of the Court’s in camera review. Defendant may consult the Court if
it believes in good faith that Plaintiff is withholding any responsive documents or information
not subject to this Order. Plaintiff is further advised that the Court may issue sanctions against
him pursuant to Fed. R. Civ. P. 37 if it concludes that he has so withheld any responsive
information.
III.
For the reasons stated herein, Plaintiff’s motion, which the Court has construed as a
motion for a Protective Order (doc. 37), is GRANTED. Plaintiff need not disclose information
related to his sealed and expunged criminal conviction stemming from an August 31, 2005 date
of conviction.

Plaintiff’s motion to postpone his April 29, 2014 deposition pending the

resolution of this motion (doc. 45), therefore, is DENIED AS MOOT. The deposition of Joseph
Rieger will proceed as previously ordered on April 29, 2014. See doc. 31. The Clerk shall
promptly return to Plaintiff the originals of all documents reviewed by the Court in camera.
IT IS SO ORDERED.
April 25, 2014

s/ Michael J. Newman
United States Magistrate Judge

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