Morgan v. Butler

[Cite as Morgan v. Butler, 2017-Ohio-816.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Jenny Morgan, :

Appellant-Appellee, :

v. : No. 16AP-488
(ERAC No. 15-6830)
Craig W. Butler, Director of :
Environmental Protection Agency et al., (ACCELERATED CALENDAR)
:
Appellees-Appellants.
:

D E C I S I O N

Rendered on March 7, 2017

On brief: Jenny Morgan, pro se. Argued: Dennis Hirsch.

On brief: Michael DeWine, Attorney General, and
Cameron F. Simmons, and Sarah Bloom Anderson, for
appellant Craig W. Butler, Director of Environmental
Protection. Argued: Cameron F. Simmons.

APPEAL from the Environmental Review Appeals Commission
SADLER, J.
{¶ 1} Appellee-appellant Ohio Environmental Protection Agency ("EPA") appeals
from a judgment of the Environmental Review Appeals Commission ("commission") in
favor of appellant-appellee, Jenny Morgan, granting appellee's motion to compel
discovery of certain attorney-client communications. For the reasons that follow, we
reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 19, 2014, Morgan filed a verified complaint, pursuant to R.C.
3745.08, with EPA Director Craig W. Butler alleging that an asphalt company by the name
No. 16AP-488 2

of Scioto Materials, LLC, was violating Ohio environmental laws pertaining to air
pollution. R.C. 3745.08 pertains to the investigation of complaints filed by persons
aggrieved or adversely affected by alleged violations of Ohio environmental laws. The
statute provides, in relevant part, as follows:
(A) [A]ny person who is or will be aggrieved or adversely
affected by a violation that has occurred, is occurring, or will
occur may file a complaint, in writing and verified by the
affidavit of the complainant, * * * with the director of
environmental protection, * * * alleging that another person
has violated, is violating, or will violate any law * * * relating
to air pollution.

(B) Upon receipt of a complaint authorized by this section,
the director shall cause a prompt investigation to be
conducted such as is reasonably necessary to determine
whether a violation, as alleged, has occurred, is occurring, or
will occur. * * * If, upon completion of the investigation, the
director determines that a violation, as alleged, has occurred,
is occurring, or will occur, the director may enter such order
as may be necessary, request the attorney general to
commence appropriate legal proceedings, or, where the
director determines that prior violations have been
terminated and that future violations of the same kind are
unlikely to occur, the director may dismiss the complaint. If
the director does not determine that a violation, as alleged,
has occurred, is occurring, or will occur, the director shall
dismiss the complaint.

(Emphasis added.)
{¶ 3} In accordance with the provisions of the statute, Director Butler initiated an
investigation of the allegations in Morgan's verified complaint. The record shows that
John Paulian, supervisor in the EPA Division of Air Pollution Control, played an
important role in EPA's review of the verified complaint. The record also shows that Air
Permitting and Compliance Supervisor Bryon J. Marusek of EPA's Central District Office
participated in EPA's investigation of the substantive allegations of the complaint.
{¶ 4} On February 2, 2015, Director Butler sent a letter to Morgan informing her
that EPA had dismissed her verified complaint because the investigation revealed that
Scioto Materials, LLC, had not violated the terms and conditions of its EPA permit.
Morgan appealed the judgment of dismissal to the commission pursuant to R.C. 3745.04.
No. 16AP-488 3

In Morgan's R.C. 3745.04 appeal to the commission, Morgan named Director Butler as
appellee in accordance with R.C. 3745.04(B).1 And in such proceedings, the Ohio
Attorney General provides the director's legal representation. R.C. 109.02.
{¶ 5} In connection with the discovery process in Morgan's appeal to the
commission, EPA inadvertently forwarded a document to Morgan that EPA identified as a
confidential attorney-client communication. Immediately on discovery of the error, EPA's
legal counsel notified Morgan and asked her to "sequester" the document in accordance
with Civ.R. 26(B)(6)(b).2 Morgan complied with the request but filed a motion to compel
production and for an in camera review. Morgan also moved the commission to compel
production of several other documents that EPA had produced but with significant
redactions due to a claim of attorney-client privilege. EPA opposed the motion arguing
that the documents at issue contained information that was either irrelevant to the appeal
or protected from disclosure by the attorney-client privilege.
{¶ 6} On May 31, 2016, the commission granted Morgan's motion to compel with
respect to eight of the documents at issue and denied her motion as to the other three.
Pursuant to R.C. 3745.06, EPA appealed to this court from the commission's ruling on the
motion to compel.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant alleges a single assignment of error as follows:
The Environmental Review Appeals Commission erred by
granting Appellee's motion for in camera review and motion
to compel, since the three communications in question are
protected by the attorney-client privilege.

III. STANDARD OF REVIEW
{¶ 8} "Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion
standard." Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13.
However, when the information sought in discovery is subject to a claim of attorney-client
privilege, it is a question of law that is reviewed de novo. Scott Elliott Smith Co., L.P.A. v.

1 Scioto Materials, LLC, is also a named appellee because it is a "party to a proceeding substantially

supporting the finding from which the appeal is taken." R.C. 3745.04(B).
2 See EPA's August 18, 2015 response to Morgan's motion for in camera review, Exhibit 1, email to Morgan

from Assistant Attorney General Cameron F. Simmons.
No. 16AP-488 4

Carasalina, LLC, 192 Ohio App.3d 794, 2011-Ohio-1602 (10th Dist.). See also MA Equip.
Leasing I, LLC v. Tilton, 10th Dist. No. 12AP-564, 2012-Ohio-4668, ¶ 13. The de novo
standard requires an appellate court to conduct an independent review of the trial court's
decision without any deference to the trial court's determination. McFarland v. West
Congregation of Jehovah's Witnesses, Lorain, OH, Inc., 9th Dist. No. 15CA010740, 2016-
Ohio-5462, ¶ 12.
IV. LEGAL ANALYSIS
{¶ 9} In EPA's sole assignment of error, it contends that the commission erred by
granting Morgan's motion to compel production of unredacted communications that are
protected from disclosure by the attorney-client privilege. We agree.
{¶ 10} "The attorney-client privilege exempts from discovery certain
communications between attorneys and their clients in the course of seeking or rendering
legal advice." Natl. Union Fire Ins. Co. of Pittsburgh v. Ohio State Univ. Bd. of Trustees,
10th Dist. No. 04AP-1340, 2005-Ohio-3992, ¶ 6, citing Boone v. Vanliner Ins. Co., 91
Ohio St.3d 209 (2001). The purpose of the privilege "is to encourage frank
communication between the attorney and client, thereby promoting broader public
interest in the observance of the law and administration of justice." Natl. Union Fire Ins.
Co. at ¶ 6. " '[B]y protecting client communications designed to obtain legal advice or
assistance, the client will be more candid and will disclose all relevant information to his
attorney, even potentially damaging and embarrassing facts.' " State ex rel. Leslie v. Ohio
Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 20, quoting 1 Rice, Attorney-
Client Privilege in the United States, Section 2.3, 14-15 (2d Ed.1999).
{¶ 11} "In Ohio, the attorney-client privilege is governed by statute, R.C.
2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law."
Leslie at ¶ 18. "R.C. 2317.02(A), by its very terms, is a mere testimonial privilege
precluding an attorney from testifying about confidential communications. The common-
law attorney-client privilege, however, 'reaches far beyond a proscription against
testimonial speech. The privilege protects against any dissemination of information
obtained in the confidential relationship.' " Id. at ¶ 26, quoting Am. Motors Corp. v.
Huffstutler, 61 Ohio St.3d 343, 348 (1991). The common-law attorney-client privilege
broadly protects against any dissemination of information obtained in the attorney-client
No. 16AP-488 5

relationship. Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC, 10th Dist.
No. 15AP-820, 2016-Ohio-1514, ¶ 13.
{¶ 12} " 'Records of communications between attorneys and their state-
government clients pertaining to the attorneys' legal advice are excepted from disclosure
under R.C. 149.43(A)(1) since the release of these records is prohibited by state law' — i.e.,
they are protected by this state's attorney-client privilege." Zingale v. Ohio Casino
Control Comm., 8th Dist. No. 101381, 2014-Ohio-4937, ¶ 29, quoting Leslie at ¶ 24, citing
State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 249 (1994). The Supreme
Court of Ohio in Leslie concluded that the attorney-client privilege in Ohio extends to
government agencies consulting with in-house counsel for legal advice or assistance, even
if that counsel is not an assistant attorney general. Id. at ¶ 43.
{¶ 13} According to the Supreme Court in Leslie, the attorney-client 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.' " Id. at
¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir.1998).
{¶ 14} Though the commission ordered EPA to produce eight of the disputed
documents, only three of the eight documents are the subject of this appeal. EPA
describes the three documents in its brief to this court as follows:
Email A contains Mr. Paulian's questions and comments to
both technical program staff and in-house counsel about the
ultimate contents of the Director's letter dismissing Ms.
Morgan's verified complaint.

***

Email B contains Mr. Paulian's comments to his colleagues
and attorney [Andrew] Bergman on a draft document related
to Ms. Morgan's Verified Complaint.

***

Email C consists of Mr. Paulian asking Attorney Bergman for
his comments and approval on a previously-sent draft of
materials related to Ms. Morgan's Verified Complaint.
No. 16AP-488 6

(Appellant's Brief at 9-11.)
{¶ 15} With regard to e-mail A, identified by Bates stamp number 508, the
commission found that it "is not a communication seeking legal advice. Accordingly, the
Commission finds the communication is not subject to attorney-client privilege."
(Emphasis sic.) (May 31, 2016 Ruling on Motion for In Camera Review at 2.) With regard
to e-mail B, identified by Bates stamp number 551, the commission found that it "is not a
communication seeking or providing legal advice. Therefore, the Commission finds the
communication is not subject to the attorney-client privilege." (May 31, 2016 Ruling on
Motion to Compel at 2.) Finally, with regard to e-mail C, identified by Bates stamp
number 477, the commission found that it "is not a communication seeking or providing
legal advice. Therefore, the Commission finds the communication is not subject to the
attorney-client privilege." (May 31, 2016 Ruling on Motion to Compel at 2.)
{¶ 16} As a preliminary matter, Morgan argues that this court must apply an abuse
of discretion standard in reviewing the commission's order. The cases cited by Morgan in
support of her argument stand for the proposition that we review factual issues, such as
whether the attorney-client relationship exists, under the abuse of discretion standard,
but we apply the de novo standard in reviewing the question whether a particular
communication is privileged under Ohio law. See, e.g., Summit Park Apts. at ¶ 12; MA
Equip. Leasing at ¶ 17-18; Frericks-Rich v. Zingarelli, 94 Ohio App.3d 357, 360 (10th
Dist.1994).
{¶ 17} In this case, there is no dispute that an attorney-client relationship exists
between the EPA and in-house legal counsel. Rather, the question in this case is whether
the common-law attorney-client privilege protects the three communications at issue. In
our view, that question is purely one of Ohio common law and does not involve the
resolution of disputed facts. Accordingly, the de novo standard of review applies in this
case. Id.
{¶ 18} In order to determine whether the three e-mail communications are
privileged, it is necessary for this court to understand the context in which Paulian sent
the e-mails. State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199. For
example, there is no dispute that each of these communications relates either to the
investigation of, or dismissal of, Morgan's verified complaint pursuant to R.C. 3745.08.
No. 16AP-488 7

Otherwise, the commission would have determined that the communications were not
relevant to Morgan's appeal of EPA's decision to dismiss her verified complaint.
Additionally, there is no indication in the record that EPA's in-house attorneys hold any
other title or position with EPA other than legal counsel. See Restatement of the Law 3d,
Law Governing Lawyers, Section 72, comment c (2000) (the privilege does not protect
"communications with a person who is a lawyer but who performs a predominantly
business function within an organization"). Our review of the e-mails in question also
reveals that they were not preexisting documents simply copied to EPA's in-house
counsel. See Restatement of the Law 3d, Law Governing Lawyers, Section 69, comment j
(2000) ("A client-authored document that is not a privileged document when originally
composed does not become privileged simply because the client has placed it in the
lawyer's hands."). Rather, each of the three e-mails at issue was prepared for and
transmitted to EPA legal counsel and other EPA employees involved in the investigation
and review of the verified complaint.
{¶ 19} Furthermore, with regard to e-mail A, Paulian submitted his own affidavit
in support of EPA's claim of privilege. The affidavit states in relevant part:
2. I have been a Compliance Monitoring Unit Supervisor in
Ohio EPA's Division of Air Pollution Control since 2004;

3. My duties include processing verified complaints, data
management, supervising staff in Ohio EPA's Compliance
Program, and maintaining the air enforcement files at Ohio
EPA.

4. I sent the email filed under seal on November 13, 2014 with
the subject line, Re: Scioto Materials verified complaint.

5. I carbon copied two Ohio EPA in-house attorneys, Drew
Bergman and Marcus Glasgow, to obtain legal counsel
concerning the questions asked in the email about Jenny
Morgan's verified complaint.

6. I sent the email in confidence."

(Emphasis sic.) (Paulian Aff. at 1-2.)
{¶ 20} In this case, Director Butler is the statutory appellee in Morgan's appeal to
the commission from EPA's ruling on Morgan's verified complaint. Consequently, the
No. 16AP-488 8

protections of the attorney-client privilege are necessary to encourage frank
communication between EPA investigatory staff and EPA in-house legal counsel, thereby
promoting broader public interest in the observance of the law and administration of
justice. See Leslie at ¶ 20, citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981);
Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio App.3d 653, 2003-Ohio-7257, ¶ 7
(6th Dist.). Our review of the communications identified as e-mails A, B, and C reveal
that each was sent by Paulian to EPA's in-house legal counsel, in their capacity as such,
seeking some form of legal advice or assistance with regard to the director's investigation
and review of Morgan's verified complaint. The fact that Paulian simultaneously sent the
e-mails to other EPA employees for the purpose of seeking technical, non-legal advice or
assistance with regard to the verified complaint does not alter the fact that Paulian sent
the e-mails in question to in-house legal counsel for the purpose of seeking legal advice
and assistance. The record discloses no other purpose for Paulian to send e-mails of this
nature to attorneys Bergman or Glasgow. Moreover, the attorney-client privilege does not
require that the communication pertain purely to legal advice, but " 'if a communication
between a lawyer and client would facilitate the rendition of legal services or advice, the
communication is privileged.' " State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port
Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 27, quoting Dunn v. State Farm Fire & Cas.
Co., 927 F.2d 869, 875 (5th Cir.1991). Similarly, attorney-client privilege applies to the
three e-mails in question regardless of whether they contain confidential facts. See Toledo
Blade Co. at ¶ 26 ("[T]he [attorney-client] privilege is not narrowly confined to the
repetition of confidences that were supplied to the lawyer by the client."). See also Ohio
Legal Ethics 1.6:410 (2015) ("The attorney-client privilege applies only to
communications and not to facts.").3
{¶ 21} Our review of the privilege claim in this case is guided by the decision of the
Supreme Court in Lanham. In Lanham, a taxpayer in the 88th Ohio house district sought
a writ of mandamus to compel respondents, the attorney general and his office, to provide
unredacted copies of records relating to the taxpayers' claim that State Representative

3Citing 1 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 10.07.8 at 10-
46/-47 (4th Ed.2015); 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure,
Fed.R.Evid. § 5484 at 320 (1986), and Supp. 2011 at 168.
No. 16AP-488 9

Danny R. Bubp simultaneously held the public offices of state representative and mayor's
court magistrate in violation of the Ohio Constitution, Article II, Section 4 and R.C.
101.26. Id. at ¶ 3. The attorney general's office had previously received complaints from
Democratic party chairmen of the three counties composing the 88th Ohio house district
claiming that Bubp was not eligible to serve in the General Assembly. Id. at ¶ 4. In
denying the requested writ, the Supreme Court held as follows:
Here, the two documents Lanham asserts are improperly
withheld are asserted by the attorney general's office to have
been gathered by Assistant Attorney General McIver as part of
his investigation into the matter on which he was advising his
client. Our in camera inspection of the documents reveals
that they contain material pertinent to such an investigation
and were transferred to Assistant Attorney General McIver
during the time period that he would have been investigating
the Bubp matter for the attorney general. Therefore, we agree
with the attorney general's office that the documents are
covered by attorney-client privilege and were properly
withheld.

Id. at ¶ 31.
{¶ 22} In this case, our review of e-mail A validates Paulian's averment that he
copied attorneys Bergman and Glasgow "to obtain legal counsel concerning the questions
asked in the e-mail about Jenny Morgan's verified complaint." (Paulian Aff. at 2.) Our
review of e-mail B confirms EPA's assertion that Paulian copied attorney Bergman on the
e-mail for the purpose of seeking legal advice or assistance in preparing materials related
to the investigation and review of Morgan's verified complaint. Finally, our review of e-
mail C validates EPA's claim that Paulian sent the e-mail to attorney Bergman for the
purpose of seeking legal advice and/or approval of previously provided materials
regarding Morgan's verified complaint. Although it is clear that obtaining legal advice or
assistance was not Paulian's only purpose in sending the three e-mails in question, given
the subject matter of the communications, the individuals to whom the communications
were sent, and the time frame in which information was transmitted, these three e-mails
were sent to EPA's in-house legal counsel for the purpose of seeking legal advice or
assistance in responding to Morgan's verified complaint. Lanham.
No. 16AP-488 10

{¶ 23} In support of the privilege claim, EPA asserts that Morgan failed to
challenge EPA's claim of attorney-client privilege regarding e-mails authored either by
attorney Bergman or attorney Glasgow. Because the claim of attorney-client privilege was
unchallenged with regard to these e-mails, the e-mails are not part of the record in this
appeal. Nevertheless, our review of the privilege log submitted by EPA in opposition to
Morgan's motion to compel reveals that Bergman sent a January 9, 2015 e-mail in
response to e-mail B. Thus, it is reasonable to infer from Morgan's acquiescence to EPA's
claim of privilege with regard to Bergman's response that Paulian sent e-mail B to
Bergman for the purpose of seeking legal advice or assistance.
{¶ 24} As a result of our independent review, we find that the three e-mail
communications at issue are privileged attorney-client communications. Additionally,
with regard to e-mails B and C, there is no argument and nothing in the record to support
a finding that Paulian published the communications to any third-party not covered by
the privilege. Accordingly, we hold that the commission erred when it granted Morgan's
motion to compel production of e-mails B and C.
{¶ 25} With regard to e-mail A, Morgan argues alternatively that EPA waived the
attorney-client privilege by producing an unredacted copy of the e-mail in discovery.
Civ.R. 26(B)(6)(b) provides in relevant part:
If information is produced in discovery that is subject to a
claim of privilege * * *, the party making the claim may notify
any party that received the information of the claim and the
basis for it. After being notified, a receiving party must
promptly return, sequester, or destroy the specified
information and any copies within the party's possession,
custody or control. A party may not use or disclose the
information until the claim is resolved. A receiving party may
promptly present the information to the court under seal for a
determination of the claim of privilege.

{¶ 26} Morgan acknowledges that EPA complied with the provisions of Civ.R.
26(B)(6)(b) following the inadvertent disclosure of e-mail A. Morgan contends, however,
that EPA waived the privilege with regard to e-mail A because it did not take reasonable
precautions to prevent disclosure to third parties. In Miles-McClellan Constr. Co. v. Bd.
of Edn. Westerville City School Bd., 10th Dist. No. 05AP-1112, 2006-Ohio-3439, this court
No. 16AP-488 11

adopted a case-by-case approach in determining whether a client's inadvertent disclosure
of privileged attorney-client communications results in a waiver of the privilege. Id. at
¶ 15. This court held that in conducting the case-by-case analysis, trial courts should
employ a five-factor balancing test, which requires consideration of (1) the reasonableness
of the precautions taken to prevent inadvertent disclosure, (2) the time taken to rectify the
error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) the overriding
issue of fairness. Id. No factor is dispositive, although courts have found overreaching
considerations of fairness often weigh heavily in favor of finding waiver of privilege after
an inadvertent disclosure. Air-Ride, Inc. v. DHL Express (USA), Inc., 12th Dist. No.
CA2008-01-001, 2008-Ohio-5669,¶ 12.
{¶ 27} In Miles-McClellan, the trial court had determined, without a hearing, that
Westerville City Schools' inadvertent disclosure of attorney-client communication to
Miles-McClelland effectively waived the attorney-client privilege. In reversing the trial
court, this court held as follows:
We hold that the law in Ohio shall be that the trial court, in
addressing inadvertent disclosure of allegedly privileged
documents in the course of discovery, must hold a hearing
considering the above-outlined factors before determining to
what extent, if any, waiver has occurred with respect to the
contested materials. We accordingly will vacate the trial
court's order and remand this matter to the trial court for
such a hearing.

Id at ¶ 16.
{¶ 28} Here, the commission conducted an in camera inspection to determine
whether e-mail A was a privileged attorney-client communication. The commission did
not expressly consider the possible waiver of the privilege in making its ruling because the
commission determined that e-mail A was not a communication seeking legal advice. We
have determined that the commission erred in that respect and that e-mail A is a
privileged attorney-client communication. Accordingly, this court's prior decision in
Miles-McClellan requires us to reverse the judgment of the commission and remand the
matter for a hearing to determine whether EPA waived the attorney-client privilege with
regard to e-mail A.
No. 16AP-488 12

{¶ 29} For the foregoing reasons, we sustain EPA's sole assignment of error with
regard to the three e-mail communications in question, and we reverse the judgment of
the commission. With regard to e-mail A, we remand the matter to the commission for a
hearing to determine whether EPA waived the attorney-client privilege.
V. CONCLUSION
{¶ 30} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Environmental Review Appeals Commission and remand the matter for
the commission to hold a hearing to determine whether EPA waived the attorney-client
privilege with respect to e-mail A.
Judgment reversed;
cause remanded with instructions.
BROWN and LUPER SCHUSTER, JJ., concur.
____________________