Opinion
Case No. 3:11cv00247
12-03-2013
MICHELE WILKINSON, et al., Plaintiffs, v. GREATER DAYTON REGIONAL TRANSIT AUTHORITY, et al., Defendants.
District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington
ORDER
This matter is before the Court upon the parties' present discovery disputes, which are set forth in the parties' respective Pre-Hearing Memoranda (Doc. #s 110, 111) and were presented during the in-court hearing held on November 25, 2013.
The parties' remaining dispute over the documents identified in Defendant's privilege log focuses on approximately 268 documents. The parties' dispute over the privilege log hinges, in part, on whether Defendant's entries in its privilege log are sufficiently specific to invoke the attorney-client privilege. See Fed. R. Civ. P. 26(b)(5)A). "The privilege log itself must be detailed enough to prove that the communications in question were in fact confidential communications relating to legal advice." In re Search Warrant Executed at Law Offices of Stephen Garea, No. 97-4112, 1999 WL 137499 *2 (6th Cir. Mar. 5, 1991). There exists a reasonable possibility in this case that some of the remaining disputed documents contain either or both business advice and privileged legal communications. "[T]he attorney-client privilege 'applies only to communications made to an attorney in his capacity as legal advisor. 'Where business and legal advice are intertwined, the legal advice must predominate for the communication to be protected.'" Alomari v. Ohio Dep't of Pub. Safety, 2:11-CV-00613, 2013 WL 5180811 at *2 (S.D. Ohio Sept. 13, 2013) (Deavers, M.J.) (internal citation omitted). Although Defendant's entries provide much information about the nature of the remaining documents in dispute, it is impossible to determine in the present case whether any of those disputed documents contain privileged legal advice that predominates over business advice. And, under the circumstances in this case, it will simply be more efficient to review in camera the actual documents to determine whether the attorney-client privilege applies or whether the attorney work-product doctrine applies.
IT IS THEREFORE ORDERED THAT:
On or before December 18, 2013, Defendant Greater Dayton Regional Transit Authority shall produce to the Court for in camera inspection, without filing with the Clerk of Courts, the approximately 268 documents identified in its privilege log that remain in dispute.
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Sharon L. Ovington
Chief United States Magistrate Judge