Morgan v. Butler

85 N.E.3d 1188

2017 Ohio 816

Jenny MORGAN, Appellant–Appellee,

v.Craig W. BUTLER, Director of Environmental Protection Agency et al., Appellees–Appellants.

No. 16AP–488

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 7, 2017

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

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

DECISION

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 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. 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, 943 N.E.2d 514, ¶ 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. Carasalina, LLC, 192 Ohio App.3d 794, 2011-Ohio-1602, 950 N.E.2d 624 (10th Dist.). See also MA Equip. Leasing I, LLC v. Tilton, 2012-Ohio-4668, 980 N.E.2d 1072, ¶ 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., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 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, 2005 WL 1840220, ¶ 6, citing Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (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, 824 N.E.2d 990, ¶ 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, 575 N.E.2d 116 (1991). The common-law attorney-client privilege broadly protects against any dissemination of information obtained in the attorney-client relationship. Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC, 2016-Ohio-1514, 49 N.E.3d 363, ¶ 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, 2014 WL 5765387, ¶ 29, quoting Leslie at ¶ 24, citing State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 249, 643 N.E.2d 126 (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

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