Myers v. City of Centerville et al

Filing 59

OPINION AND ORDER - Conclusion:In sum, the Court GRANTS Plaintiff's Motion to Amend the Complaint (Doc. 34 ), DENIES Defendants' Motion to Compel (Doc. 46 ), and DENIES Plaintiff's Motion to Compel (Doc. 48 ). The Court also sua sponte extends the Discovery Deadline to April 13, 2023, and the Dispositive Motion Deadline to May 24, 2023. IT IS SO ORDERED. Signed by Magistrate Judge Caroline H. Gentry on 1/17/2023. (srb)

Case: 3:20-cv-00402-MJN-CHG Doc #: 59 Filed: 01/17/23 Page: 1 of 11 PAGEID #: 2063

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
JAMES MYERS,
Plaintiff,
vs.
CITY OF CENTERVILLE, et al.,
Defendants.

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Case No. 3:20-cv-00402
District Judge Michael J. Newman
Magistrate Judge Caroline H. Gentry

OPINION AND ORDER
This matter comes before this Court on Plaintiff’s Motion for Leave to Amend and
Supplement His Complaint (Doc. 34), Defendants’ Motion to Compel (Doc. 46) and
Plaintiff’s Motion to Compel Answers to Questions Propounded During Oral Depositions
(Doc. 48). For the reasons set forth below, the Court GRANTS Plaintiff’s Motion to
Amend the Complaint, DENIES Defendants’ Motion to Compel, and DENIES Plaintiff’s
Motion to Compel. The Court also sua sponte extends the discovery and dispositive
motion deadlines.
A.

Plaintiff’s Motion To Amend Complaint Is Granted

Plaintiff is a former police sergeant who brought this lawsuit against his former
employer, and two of its officials, asserting a claim of First Amendment retaliation and
several state-law claims. A detailed description of the Complaint’s allegations can be
found in the Sixth Circuit opinion addressing the individual Defendants’ claims of
qualified immunity. See Myers v. City of Centerville, 41 F.4th 746 (6th Cir. 2022).
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In his Motion to Amend (Doc. 34), Plaintiff seeks leave to add a new claim for
First Amendment retaliation (Count Seven) that is based upon different facts than those
that underlie his existing First Amendment claim (Count One). Plaintiff states that he
discovered these facts during the depositions of Defendant Wayne Davis, the Centerville
City Manager, and Defendant Matthew Brown, the Centerville Chief of Police. Plaintiff
argues that he promptly sought leave to amend his Complaint and that no prejudice will
result from allowing the amendment. Defendants disagree, asserting that the amendment
is untimely because the underlying facts were previously known to Plaintiff. They argue
that the amendment is futile because the claim is barred by the statute of limitations.
Finally, they claim that they will be unfairly prejudiced by the amendment because it will
require them to conduct additional discovery.
Federal Rule of Civil Procedure 15(a) governs a plaintiff’s ability to amend the
complaint. 1 A complaint may be amended once as a matter of course within 21 days of
service. Fed. R. Civ. P. 15(a)(1)(A). If a plaintiff wishes to amend the complaint after the
21-day period has expired, then he must obtain written consent of the opposing party or
leave of Court. Fed. R. Civ. P. 15(a)(2).
The granting or denial of a motion to amend pursuant to Rule 15(a) is within the
discretion of the trial court. Leave to amend a complaint should be liberally granted,
Foman v. Davis, 371 U.S. 178 (1962), and this Court “should freely give leave when

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Although Plaintiff also seeks leave to supplement his Complaint under Rule 15(d), that provision only applies if
the subject of the amendment is a “transaction, occurrence or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d). Here, although Plaintiff allegedly discovered the pertinent facts while taking
depositions after the Complaint was filed, those facts relate to events that occurred before the Complaint was filed.
Therefore, the Court will analyze Plaintiff’s request under Rule 15(a).

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justice so requires.” Fed. R. Civ. P. 15(a)(2). “In deciding whether to grant a motion to
amend, courts should consider undue delay in filing, lack of notice to the opposing party,
bad faith by the moving party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and futility of amendment.”
Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005). The test
for futility is whether the amended complaint could survive a Rule 12(b)(6) motion to
dismiss. Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000).
Under the liberal standard for amendment set forth in Rule 15(a), the Court finds
that Plaintiff’s Motion to Amend should be granted. Plaintiff did not unduly delay the
filing of the amendment, as he allegedly based it upon information revealed during
discovery. There is no showing of bad faith. In light of the relation-back doctrine set forth
in Rule 15(c), Defendants have not shown that amendment would be futile. Finally, the
Court will address Defendants’ claim of prejudice by extending the discovery and
dispositive motion deadlines and allowing Plaintiff to be re-deposed on the new claim.
Accordingly, Plaintiff’s Motion to Amend is GRANTED.
B.

Defendants’ Motion To Compel Is Denied.

Defendants’ Motion to Compel (Doc. 46) arises from Plaintiff’s surreptitious
recording of an August 1, 2018 meeting between Plaintiff, Defendant Davis, and
Defendant Brown. When Plaintiff answered questions about this meeting during an
internal investigation, he did not disclose the existence of the recording. According to
Defendant City of Centerville, Plaintiff was terminated because he failed to disclose the
recording and thereby violated City rules and policies. During his deposition, Plaintiff
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testified that he relied on the advice of his counsel when he decided not to disclose the
existence of the recording. (Doc. 46, PageID #1893-94.)
Defendants claim that Plaintiff’s testimony shows that he intends to rely on the
advice of counsel to challenge the basis for his termination. By placing the advice of his
counsel at issue, Defendants argue, Plaintiff has waived the attorney-client privilege. In
their Motion, Defendants seek to compel discovery regarding “(1) the substance of the
advice given by [attorney] Jeffrey Silverstein to Plaintiff, and the basis therefore, related
to withholding and not disclosing the recording of the August 1, 2018 meeting; and (2)
what information was provided to Mr. Silverstein by Plaintiff related to the policies and
procedures of the City as to the investigation of Plaintiff.” (Doc. 46, PageID #1889.)
Defendants claim they will be prejudiced without this discovery. (Id., PageID #1899.)
In response, Plaintiff clarifies that he is not relying, and will not rely, upon the
advice of counsel “to prove his claims or disprove Defendants’ defenses” at summary
judgment or trial. (Doc. 52, PageID #1984-95.) Given this representation, the Court finds
that Plaintiff has not placed the advice of counsel at issue in this case, and has not waived
the attorney-client privilege. Therefore, Defendants’ Motion to Compel is DENIED.
C.

Plaintiff’s Motion To Compel Is Denied.

Plaintiff’s Motion to Compel (Doc. 48) seeks to compel deposition testimony on
two separate topics. For the reasons set forth below, the Court denies Plaintiff’s Motion.

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1.

Discussions held during the City Council’s executive session are
confidential, privileged and not discoverable.

Plaintiff seeks to compel Defendant Davis to testify about a City Council
executive session that addressed the discipline of another employee, Brad Kavalunas.
“Plaintiff seeks to know what information was raised in that session, what guidance on
discipline was sought and/or received from the council, and whether that guidance was
followed.” (Doc. 48, PageID #1928.) Defendants argue that this information is privileged
and non-discoverable under Ohio Revised Code Sections 102.03(B) and 121.22(G).
Although Ohio city councils must usually hold meetings in public, Ohio law
permits city councils to have private discussions about individual employees in executive
session. Specifically, city councils may go into executive session “[t]o consider the
appointment, employment, dismissal, discipline, promotion, demotion, or compensation
of a public employee … or the investigation of charges or complaints against a public
employee ….” R.C. 121.22(G)(1). Current and former public officials and employees are
prohibited from disclosing or using, “without appropriate authorization, any information
acquired … in the course of the [individual’s] official duties that is confidential because
of statutory provisions.” R.C. 102.03(B). The Sixth Circuit has held that this “executive
session privilege … makes confidential any communications that occur during the
executive sessions of political subdivisions.” Humphries v. Chicarelli, 554 Fed. App’x
401, 401 (6th Cir. 2014).
Citing Humphries and a decision from this Court, University Estates, Inc. v. City
of Athens, Ohio, No. 2:09-cv-758, 2011 WL 796789 (S.D. Ohio Feb. 25, 2011) (Frost, J.),
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Defendants argue that the individual Defendants, who are public employees, cannot be
compelled to testify about their recollection of confidential discussions held during the
City Council’s executive session. (Doc. 51, PageID #1968-69.) The Court agrees.
There is no dispute that Plaintiff seeks to compel the discovery of confidential
information that is protected by the Ohio executive session privilege. Both the Sixth
Circuit and this Court have held that such communications are privileged. Humphries,
554 Fed. App’x at 401; University Estates, 2011 WL 796789; Talismanic Properties,
LLC v. City of Tipp City, Ohio, No. 3:16-cv-285, 2017 U.S. Dist. LEXIS 90290, *6-8
(S.D. Ohio June 9, 2017) (Newman, J.). Thus, they are not discoverable.
Seeking to forego this result, Plaintiff argues that R.C. 102.03(B) does not
establish an “absolute” executive session privilege and that its existence requires “a fact
dependent inquiry.” (Doc. 56, PageID #2045.) Plaintiff’s cited cases are not persuasive.
First, Plaintiff cites Springfield Local Sch. Dist. Bd. of Educ. v. Ohio Assoc. of
Pub. Sch. Employees, 106 Ohio App. 3d 855, 667 N.E.2d 458 (9th App. Dist. 1995). In
that case, an Ohio appellate court held that “there is no absolute privilege to be accorded
discussions held in executive session.” Id., 106 Ohio App. 3d at 868. Without addressing
the provision at issue here—namely, R.C. 102.03(B), which prohibits public employees
from disclosing matters discussed during executive sessions—the appellate court held
that Ohio law only protects against the disclosure of executive session communications to
the general public, and not in litigation. Id. at 869. This holding is inconsistent with R.C.
102.03(B), which does not make an exception for litigation. Because the appellate court

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did not consider R.C. 102.03(B) in its analysis—and because this case pre-dates the Sixth
Circuit’s decision in Humphries—the undersigned does not find it persuasive.
Next, Plaintiff cites Kamenski v. Wellington Exempted Village Schs., No. 1:14-cv01589, 2016 U.S. Dist. LEXIS 58036 (N.D. Ohio May 2, 2016). In that case, the court
held that the executive session privilege does not apply to “discussions occurring during
an executive session that are unrelated to the topics properly discussed in executive
session” pursuant to Ohio law. Id. at *8. Here, however, Plaintiff does not contend that
the information he seeks to compel was improperly considered during the City Council’s
executive session. Therefore, Kamenski does not aid the Plaintiff’s arguments.
Finally, Plaintiff cites McCormas v. Hill Local Sch. Dist., No. 1:07-cv-573, 2009
U.S. Dist. LEXIS 151921 (S.D. Ohio May 11, 2009) (Dlott, J.). In that case, the Court
held that there is no executive session privilege under R.C. 121.22(G), and further held
that compelled disclosure is consistent with R.C. 102.03(B) if the Court authorizes the
discovery. Because this case was decided before Humphries v. Chicarelli, 554 Fed.
App’x 401 (6th Cir. 2014), which recognized the existence of the executive session
privilege in litigation, the undersigned declines to follow it.
For all these reasons, Plaintiff’s request to compel the production of information
relating to discussions occurring during the City Council’s executive session is DENIED.
2.

The attorney-client privilege protects information provided by
the individual Defendants to the City’s investigator.

Plaintiff seeks to compel Defendants Brown and Davis to testify about what they
told an outside attorney, Tom Schiff, who Defendant City hired to investigate Plaintiff’s
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allegations against the former Police Chief. 2 Defendants argue that statements made by
City employees to an outside attorney hired by the City to conduct an internal
investigation is protected by the attorney-client privilege. Plaintiff argues that the
information is not privileged because Attorney Schiff was not acting as an attorney.
The attorney-client privilege “ensure[s] free and open communications between a
client and his attorney.” In re Grand Jury Subpoenas, 454 F.3d 511, 519 (6th Cir. 2006).
This Court uses an eight-factor test to determine whether the privilege applies: “(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 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, 134
F.3d 351, 355-56 (6th Cir. 1998).
It is well-established that “the attorney-client privilege protects confidential
employee communications made during a business’s internal investigation led by
company lawyers.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 756 (D.C. Cir.
2014) (citing Upjohn Co. v. U.S., 449 U.S. 383 (1981)). “The fact that the privilege is
invoked to protect communications made by employees of a governmental entity rather
than a private party does not change the analysis.” Sandra T.E. v. S. Berwyn Sch. Dist.
100, 600 F.3d 612, 620 (7th Cir. 2009).

Although the request set forth in the Motion to Compel (Doc. 48, PageID #1928) is broader than this description,
Plaintiff’s counsel clarified during oral argument that she is only seeking testimony from these two Defendants.

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The critical question is whether Attorney Schiff performed his investigative work
in his capacity as an attorney, i.e., whether the City hired him to perform legal work and
to render legal advice. Upjohn Co., 449 U.S. at 394 (holding that the attorney-client
privilege applied to communications “made by Upjohn employees to counsel for Upjohn
acting as such, at the direction of corporate superiors in order to secure legal advice”)
(emphasis added). Although the record on this issue is scarce, the Court concludes that
Defendants have met their burden of establishing the existence of the attorney-client
privilege.
Defendant Davis, the City Manager, was responsible for the investigation of Chief
Robertson. He began this task by contacting the City’s labor counsel and its Municipal
Law Director, an outside law firm named Altick & Corwin. (Doc. 44, PageID 1161-63.)
Defendant Davis testified that Altick & Corwin selected and contracted with Mr. Schiff
to perform the investigation. (Id.) His attorney then requested a break to clarify the
application of the attorney-client privilege:
MR. DOWD: --- I would like to take a break, because I’ve got to get some
clarification as to Schiff’s role, as to whether he was legal counsel or not,
before we go down this road. And I don’t know the answer –
MS. NEFF: No. Go ahead. Get clarification.
MR. DOWD: -- but I want to clarify this.
(Recess taken)
MR. DOWD: Just for the record, it’s been explained to me Tom Schiff’s
role here in more detail, that he was actually hired by the law director to
conduct this investigation in lieu of the law director doing it and bring in an
outside source. But he was brought in as an attorney to conduct this
investigation, communicate with my client and the law director regarding
that investigation.
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So our position is any communications between counsel and the
administration regarding that investigation with Mr. Schiff are privileged,
and so I am going to instruct him not to answer those questions up to, at
least, the point in time when that Schiff report was made public.
MS. NEFF: Was he hired to provide advice?
MR. DOWD: That is our position, yes.
MS. NEFF: And to represent the City?
MR. DOWD: He’s representing the City’s law department during the
course of that investigation.
(Doc. 44, PageID #1163-65.) The Court finds that these representations by Defendants’
counsel are sufficient to establish the existence of the attorney-client privilege.
Pointing to Defendant Davis’s testimony that likened the investigation of Chief
Robertson to an internal affairs police investigation, Plaintiff argues that this testimony
constitutes an admission that Mr. Schiff was not hired as an attorney. (Doc. 48, PageID
#1931-33; Doc. 56, PageID #2047-48.) The connection between these concepts is too
attenuated to create such an inference. It is equally plausible that Attorney Schiff both
conducted an investigation that was like an internal affairs police investigation, and also
provided legal advice to the City.
Therefore, Plaintiff’s request to compel the production of information provided by
the individual Defendants to Attorney Schiff is DENIED.

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D.

Conclusion.

In sum, the Court GRANTS Plaintiff’s Motion to Amend the Complaint (Doc. 34),
DENIES Defendants’ Motion to Compel (Doc. 46), and DENIES Plaintiff’s Motion to
Compel (Doc. 48). The Court also sua sponte extends the Discovery Deadline to April
13, 2023, and the Dispositive Motion Deadline to May 24, 2023.
IT IS SO ORDERED.

/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
Any party may, within fourteen (14) 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), Fed. R. Civ. P. 72(a). The motion must specifically designate the order or
part in question and the basis for any objection. Responses to objections are due ten 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, notwithstanding the filing of any objections,
unless stayed by the Magistrate Judge or District Judge. S.D. Ohio Civ. R. 72.4.

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