Opinion
CV 09 689237
01-31-2013
THE SHERWIN-WILLIAMS COMPANY, Plaintiff, v. MOTLEY RICE LLC, et al., Defendants
JOURNAL ENTRY
John P. O'Donnell, J.
STATEMENT OF THE CASE
This is a lawsuit by plaintiff The Sherwin-Williams Company alleging causes of action against the defendants Motley Rice, LLC and Stephen Walker for conversion, replevin, misappropriation of trade secrets, civil conspiracy, and aiding and abetting tortious conduct. The first amended complaint also includes a claim against Motley Rice only for tortious interference with business relations, and claims against Walker only for breach of contract and fraudulent inducement (for falsely representing that he had never disclosed confidential information in connection with a 2007 settlement of an employment law claim).
--------- Notes: John Does are also included as defendants on all of these causes of action except conversion and replevin. [2]Motley Rice's notice of submission of documents for in camera inspection, filed 08/15/2012, page 7. [3] Id. , p. 8. ---------
These claims arise from Sherwin-Williams's discovery in September, 2008 that Motley Rice, counsel for the plaintiff State of Rhode Island in a separate lead paint nuisance lawsuit where Sherwin-Williams was a defendant, possessed some documents from a 2004 Sherwin-Williams board meeting. According to Sherwin-Williams, the documents are trade secrets. Walker, a former Sherwin-Williams employee, is a defendant for allegedly giving the documents to Motley Rice.
As discovery in this case proceeded, Sherwin-Williams filed on July 22, 2010, a motion to compel Motley Rice's responses to written discovery and deposition questions.
By an entry journalized June 1, 2011, the court granted the motion and ordered: 1) Motley Rice witnesses Fidelma Fitzpatrick and Aileen Sprague to answer deposition questions that were objected to on the basis of the attorney-client and work product privileges, 2) Motley Rice to produce for an in camera inspection for attorney-client privilege any documents listed on its privilege log that are communications between Motley Rice and the State of Rhode Island, except communications with the Rhode Island attorney general's office, and 3) Motley Rice to produce to the plaintiff, without an in camera inspection, the documents on its privilege log withheld on the basis of the work product privilege. Among other reasons for the order was the court's conclusion that Motley Rice's internal communications about the documents at issue are not, as claimed by Motley Rice, protected by the attorney-client privilege.
Motley Rice appealed that decision to the Cuyahoga County Court of Appeals. The appellate court journalized its opinion on March 1, 2012. The appeals court affirmed the trial court's decision that Motley Rice's internal communications are not protected by the attorney-client privilege. However, the court of appeals did find that the trial court erred by ordering the production of claimed work product material without first conducting an in camera inspection of the materials for which Motley Rice asserted the protection. Based on that, the appeals court remanded with the following instruction:
The trial court is ordered to conduct an in camera review of the documents and communications listed on Motley Rice's privilege log, as well as Motley Rice's answers to Sherwin-Williams' request for production of documents. We further order the trial court to conduct an in camera review of Fidelma Fitzpatrick's and Aileen Sprague's written answers to Sherwin-Williams' deposition questions.Sherwin-Williams Co. v. Motley Rice, LLC , 8th Dist. No. 96927, 2012 Ohio 809, ¶ 58.
After remand, Motley Rice delivered to the court written answers to the deposition questions and 83 documentary exhibits. The court has now reviewed all of those items in camera while keeping in mind the appellate court's observation that it is perplexed about Sherwin-Williams's " need for anything else" from Motley Rice. Id. , ¶ 53. This entry follows.
LAW AND ANALYSIS
Rule 26(B)(1) of the Ohio Rules of Civil Procedure allows discovery " regarding any matter, not privileged, which is relevant to the subject matter" of the lawsuit. Motley Rice has resisted discovery by claiming two privileges: attorney-client and attorney work product. Since the court of appeals agreed that the attorney-client privilege does not apply to communications among only the Motley Rice lawyers, this court's in camera review of the deposition answers and documents is limited to the applicability of the work product doctrine.
The work product privilege, unlike the attorney-client privilege, belongs to the attorney and assures that counsel's private files shall remain free from intrusions by opposing counsel in the absence of special circumstances. Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. , 82 Ohio App.3d 322, 329, 612 N.E.2d 442 (2d Dist. 1992). With respect to the protection of documents from discovery, the doctrine is codified at Civil Rule 26(B)(3), but the common law doctrine emanates from the 1947 United States Supreme Court case of Hickman v. Taylor. Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St.3d 161, 2010 Ohio 4469, ¶ 54, 937 N.E.2d 533. The protection applies not just to documents and other things but to intangible work product, including an attorney's analysis, opinions, and strategy. Intangible work product is protected because, otherwise, attorneys' files would not be discoverable, but attorneys themselves would have no work product objection to depositions. Id. , ¶ 58.
To be afforded protection as work product, the information sought must fall within Civil Rule 26(B)(3)'s definition of trial preparation materials: things that are " prepared in anticipation of litigation or for trial" by opposing counsel. The doctrine protects this information without regard to its subjective importance to the party claiming the discovery exemption. Moreover, the definition of " trial" should be liberally expanded to include any court hearing, including the post-trial costs hearing in the Rhode Island lawsuit where Sherwin-Williams found out that Motley Rice had its confidential documents. With those considerations in mind, there is no question that the information Sherwin-Williams wants is ordinarily non-discoverable as attorney work product. Hence, Motley Rice may be compelled to answer Sherwin-Williams's deposition and document discovery only, as provided in Civil Rule 26(B)(3), " upon a showing of good cause therefor."
A showing of good cause under Civil Rule 26(B)(3) requires a demonstration of need for the materials; i.e. , a showing that the materials, or the information they contain, are relevant and otherwise unavailable. Jackson v. Greger , 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487, at syllabus 2.
This court has already concluded, even without the in camera review of their answers, that the questions Fitzpatrick and Sprague objected to at their depositions were relevant. Having now reviewed their responses, the court further finds that the information provided by the answers is otherwise unavailable. Sherwin-Williams discovered in late 2008 that its confidential documents from 2004 were in the hands not of its opposing litigant but of opposing counsel, Motley Rice. The only way for Sherwin-Williams to discover when, how and from where Motley Rice got the documents and then how they used them is through questioning Fitzpatrick and Sprague.
Yet Motley Rice has argued that all of the discovery -- the deposition questions and document requests -- should be denied because they seek opinion work product that " enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." But that argument ignores the " rare and extraordinary circumstances" of this case. Motley Rice is not only an alleged tortfeasor, but is known to possess documents that Sherwin-Williams claims are confidential. To deny the plaintiff the chance to depose witnesses on relevant topics just because the alleged tortfeasor is opposing counsel in separate litigation would unfairly deprive Sherwin-Williams of the opportunity to prove its claims, and allowing that inquiry here does not threaten the same prospect for an ordinary case because the ordinary case does not cast opposing counsel in the role of defendant. The known facts justify allowing Sherwin-Williams to have the same full discovery from witnesses it would be entitled to in a case involving a non-attorney defendant.
Therefore, Motley Rice is ordered to forthwith produce to Sherwin-Williams a complete copy of Fitzpatrick and Sprague's written answers to the deposition questions that were attached to the court's copy of its notice of submission of written responses to questions posed by Sherwin-Williams for in camera inspection, filed September 19, 2012.
For the same reasons that Sherwin-Williams showed good cause for the witnesses' testimony, documentary evidence showing the provenance, use and value to Motley Rice of Sherwin-Williams's confidential information should be produced. Hence, Motley Rice is ordered to forthwith produce to Sherwin-Williams the following documents from the binder of 83 items submitted to the court on August 15 and October 26, 2012: exhibit 1 (bates-stamped IN-CAMERA 000002 through 000003); exhibit 3 (IN-CAMERA 000008 through 000009); the portion of exhibit 8 stamped IN-CAMERA 000025; exhibit 16 (IN-CAMERA 000059 through 000068); the page of exhibit 17 stamped IN-CAMERA 000070, but only the 09/19/2008, 12:23 p.m., email from Jack McConnell to Fidelma Fitzpatrick (with copies to McInnis, Kelly and Smith), and the attachment to that email at IN-CAMERA 000073; exhibit 20 (IN-CAMERA 000099); exhibit 44 (IN-CAMERA 000300 through 000301); exhibit 64 (IN-CAMERA 000508 through 000542); and exhibit 66 (IN-CAMERA 000555 through 000558).
The court has inspected all of these documents and finds that they are relevant to the plaintiff's causes of action and are otherwise unavailable. The court also finds that none of the documents include opinion work product. In reaching that conclusion the court has considered, and rejected as inapplicable under the facts in this case, Motley Rice's argument that " even transmittal emails that include little or no commentary reflect the attorney's internal thought and decision making process."
The written answers of Fitzpatrick and Sprague and the entire 83-exhibit binder will be maintained by the court under seal as part of the trial court record.
IT IS SO ORDERED.