Jacobs v. Equity Trust Co. , 2020 Ohio 6882 ( 2020 )

[Cite as Jacobs v. Equity Trust Co., 2020-Ohio-6882.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
WILLIE JACOBS, et al. C.A. No. 20CA011621
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EQUITY TRUST COMPANY, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellants CASE No. 13CV182283
DECISION AND JOURNAL ENTRY
Dated: December 28, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellants, Equity Trust Company, Equity Administrative Services, Inc., Jeffrey
Desich, and Richard Desich, Sr., appeal an interlocutory order of the Lorain County Court of
Common Pleas ordering the production of certain documents to appellees, Willie Jacobs, Elias
Zachos, and Gerald Watts. For the reasons set forth below, this Court reverses.
I.
{¶2} Willie Jacobs, Elias Zachos, and Gerald Watts (collectively “the Plaintiffs”) filed a
putative class action lawsuit against Equity Trust Company, Equity Administrative Services, Inc.,
Jeffrey Desich, and Richard Desich, Sr. (collectively “the Equity Defendants”) alleging claims
related to investment losses in their self-directed individual retirement accounts. One of the
allegations asserted by the Plaintiffs involves Equity Trust Company (“Equity Trust”) failing to
disclose and charging fees on customers’ uninvested cash in their accounts in contravention of the
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Custodial Account Agreement (“the Agreement”). Equity Trust modified the Agreement in July
2011, and the Plaintiffs sought discovery regarding the revision of the Agreement.
{¶3} After having received 6,600 documents, the Plaintiffs filed a motion for an in
camera inspection of approximately 1,260 documents that the Equity Defendants withheld on
various grounds of privilege. After a status conference and further independent discussions
between counsel, the number of disputed documents was eventually reduced to 225 documents.
{¶4} Relative to this appeal, the Equity Defendants submitted 50 of the 225 disputed
documents for an in camera inspection. These 50 documents were organized in a binder under 40
tabbed sections and consisted of redacted emails and attached drafts of the Agreement that were
exchanged internally between employees of Equity Trust and with legal counsel during June and
July 2011 related to the revision of the Agreement. Along with the binder, the Equity Defendants
filed two affidavits by Michael Dea, the CEO of Equity Trust, and their billing statements from
Ulmer & Berne, LLP (“Ulmer & Berne”), as evidentiary support that the 50 documents were
protected by attorney-client privilege. Following an in camera review, the trial court ordered the
Equity Defendants to produce the documents contained within 31 of the 40 tabs.
{¶5} The Equity Defendants timely appeal, asserting one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY COMPELLING DEFENDANT-APPELLANT
EQUITY TRUST COMPANY * * * TO PRODUCE DOCUMENTS
PROTECTED FROM DISCLOSURE BY THE ATTORNEY-CLIENT
PRIVILEGE.
{¶6} The Equity Defendants assert that the trial court erred when it ordered them to
produce documents to the Plaintiffs that are protected by attorney-client privilege. We agree.
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{¶7} Generally, this Court applies an abuse of discretion standard when reviewing
discovery orders. Teodecki v. Litchfield Twp., 9th Dist. Medina No. 14CA0035-M, 2015-Ohio-
2309, ¶ 45, quoting Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333, ¶ 12
(9th Dist.). However, when the information sought in discovery is alleged to be confidential and
privileged, it is a question of law that is reviewed de novo. Teodecki at ¶ 45, citing Med. Mut. of
Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13. Because the discovery issue raised
by the Equity Defendants involves whether the redacted emails and draft revisions of the
Agreement are protected by the attorney-client privilege, we review this matter de novo. See
Teodecki at ¶ 45. “A de novo review requires an independent review of the trial court’s decision
without any deference to the trial court’s determination.” State v. Consilio, 9th Dist. Summit No.
22761, 2006-Ohio-649, ¶ 4.
{¶8} “The attorney-client privilege exempts from the discovery process certain
communications between attorneys and their clients. The privilege has long been recognized by
the courts[.]” Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 210 (2001), fn. 2, citing Upjohn Co.
v. United States, 449 U.S. 383, 389 (1981) and Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d
638, 660 (1994). See State ex rel. Leslie v. Ohio Housing Fin. Agency, 105 Ohio St.3d 261, 2005-
Ohio-1508, ¶ 19, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (“‘The
attorney-client privilege is one of the oldest recognized privileges for confidential
communications.’”). The protection afforded by the attorney-client privilege extends to “not only
the giving of professional advice to those who can act on it but also the giving of information to
the lawyer to enable him to give sound and informed advice.” Upjohn Co. at 390.
{¶9} The primary purpose of this privilege is to “‘encourage full and frank
communications between attorneys and their clients and thereby promote broader public interests
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in the observance of law and administration of justice.’” State ex rel. Leslie at ¶ 20, quoting Upjohn
Co. at 389. The privilege “‘applies only where necessary to achieve its purpose and protects only
those communications necessary to obtain legal advice.’” In re Columbia/HCA Healthcare Corp.
Billing Practices Litigation, 293 F.3d 289, 294 (6th Cir.2002), quoting In re Antitrust Grand Jury,
805 F.2d 155, 162 (6th Cir.1986).
{¶10} “In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A),
which provides a testimonial privilege, and by common law, which broadly protects against any
dissemination of information obtained in the confidential attorney-client relationship.” State ex
rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, ¶ 27, citing
State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-
1767, ¶ 24. This matter is governed by common law attorney-client privilege because the
discovery in dispute concerns the production of redacted emails and draft revisions of the
Agreement, and not the testimony of an attorney. See Grace v. Mastruserio, 182 Ohio App.3d
243, 2007-Ohio-3942, ¶ 17 (1st Dist.). See, e.g., Nageotte v. Boston Mills Brandywine Ski Resort,
9th Dist. Summit No. 26563, 2012-Ohio-6102, ¶ 7-8.
{¶11} The Supreme Court of Ohio has repeatedly identified the factors that trigger the
attorney-client privilege:
“‘(1) Where 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.’”
State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, ¶ 27, quoting State ex rel.
Leslie at ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-356 (6th Cir.1998). The party seeking
protection under the attorney-client privilege carries the burden of establishing the existence of the
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privilege. Peyko v. Frederick, 25 Ohio St.3d 164, 166 (1986), quoting Waldmann v. Waldmann,
48 Ohio St.2d 176, 178 (1976).
{¶12} It is widely recognized that the attorney-client privilege applies to communications
between corporations and their attorneys. State ex rel. Leslie at ¶ 22, citing Upjohn Co., 449 U.S.
at 390 and Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343 (1991). Accord Bennett v. Roadway
Express, Inc., 9th Dist. Summit No. 20317, 2001 WL 866261, *14 (Aug. 1, 2001), citing Upjohn
Co. at 390. The privilege extends not only to top executives, officers and agents of the corporation,
but also to middle-level and lower-level employees of the corporation. See Upjohn Co. at 391. In
order to fall within the attorney-client privilege, the communications between the attorney and the
corporate employees must concern matters within the scope of the employees’ corporate duties
and the employees need to be aware that the communications were for the purpose of obtaining
legal advice. See id. at 394. “The privilege only protects disclosure of communications; it does
not protect disclosure of the underlying facts by those who communicated with the attorney.” Id.
at 395, quoting Philadelphia v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa.1962).
{¶13} The attorney-client privilege rules set forth in Upjohn have been expanded to
include “communications between non-attorney corporate employees where the communications
were made for purposes of securing legal advice from counsel” and “relay[ing] legal advice.”
Graff v. Haverhill N. Coke Co., S.D.Ohio No. 1:09-cv-670, 2012 WL 5495514, *7 (Nov. 13, 2012)
and McCall v. Procter & Gamble Co., S.D.Ohio No. 1:17-cv-406, 2019 WL 3997375, *4 (Aug.
22, 2019). See Reckley v. Springfield, S.D.Ohio No. 3:05-cv-249, 2008 WL 5234356, *2 (Dec.
12, 2008) (“The fact that communication about legal advice is between or among employees of
the client does not deprive it of its privileged status.”). In order for the attorney-client privilege to
apply, there must be substantial proof that the dominant intent of the communications, which
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includes documents, between non-attorney employees was to obtain legal advice. In re Behr
Dayton Thermal Prods., LLC, 298 F.RD. 369, 375 (S.D.Ohio 2013), quoting Comtide Holdings,
LLC v. Booth Creek Mgt. Corp., S.D.Ohio No. 2:07-cv-1190, 2010 WL 5014483, *2-3 (Dec. 3,
2010). See Waters v. Drake, S.D.Ohio No. 2:14-cv-1704, 2015 WL 8281858, *3-4 (Dec. 8, 2015)
(the attorney-client privilege applied to documents exchanged between non-attorney employees
where the dominant purpose was to seek legal advice). Similarly, draft documents are protected
by the attorney-client privilege when they are prepared for the purpose of obtaining or rendering
legal advice. See, e.g., Wilkinson v. Greater Dayton Regional Transit Auth., S.D.Ohio No.
3:11cv00247, 2014 WL 953546, *3 (Mar. 11, 2014) (“draft documents * * * prepared or analyzed”
by counsel related to obtaining and giving legal advice were protected by attorney-client privilege);
Graff at *22-24 (draft letters prepared by corporate employees at counsel’s request and revised by
counsel in furtherance of legal advice were protected by the attorney-client privilege). When the
dominant purpose of the communication is a business decision and not legal advice, then “the
communication cannot be insulated from discovery just by sending a copy of it to a lawyer.”
Waters at *4. See McCall at *5 (“A communication does not obtain privileged status simply
because an attorney is copied.”).
{¶14} When providing legal advice in the corporate context, legal and business
considerations may be inextricably intertwined. In re OM Group Securities Litigation, 226 F.R.D.
579, 587 (N.D.Ohio 2005), citing Picard Chem. Inc. Profit Sharing Plan v. Perrigo Co., 951 F.
Supp. 679, 685 (W.D.Mich.1996). “[T]he fact that business considerations are weighed in the
rendering of legal advice will not vitiate the attorney-client privilege.” In re OM Group Securities
Litigation at 587, citing Picard Chem. Inc. Profit Sharing Plan at 685-686. “‘Where business and
legal advice are intertwined, the legal advice must predominate for the communication to be
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protected.’” Alomari v. Ohio Dept. of Pub. Safety, S.D.Ohio No. 2:11-cv-00613, 2013 WL
5180811, *2 (Sept. 13, 2013), quoting Neuder v. Battelle Pacific Northwest Natl. Laboratory, 194
F.R.D. 289, 292 (D.D.C.2000). When both legal and business advice are present in a
communication, it is incumbent upon the court to “consider ‘whether the predominant purpose of
the communication is to render or solicit legal advice.’” McCall at *6, quoting Cooey v. Strickland,
269 F.R.D. 643, 650 (S.D.Ohio 2010). If the predominant purpose is legal advice, then all parts
of the communication, including the non-legal portions, are protected by the attorney-client
privilege. Cooey at 650.
{¶15} In this matter, the Equity Defendants have asserted the attorney-client privilege to
1) redacted emails and the attached draft revisions of the Agreement exchanged between
employees of Equity Trust, 2) draft revisions of the Agreement that were attached to emails
between outside counsel and Equity Trust employees, and 3) draft revisions of the Agreement that
were attached to emails between Equity Trust employees. The Plaintiffs argue that the Equity
Defendants have failed to show that the employees of Equity Trust were aware that the dominant
purpose of the communications was legal advice. Also, the Plaintiffs argue that the drafts created
by Equity Trust were sent to counsel solely to avoid disclosure. Lastly, the Plaintiffs argue that
the attorney-client privilege does not apply to the redacted emails and the draft revisions of the
Agreement because they do not reflect legal advice, but rather business decisions.
Redacted emails and the attached draft revisions of the Agreement exchanged between
officers and executive employees of Equity Trust
(Tabs 9, 10, 12, 13, 15, 17, 18, 19, 20, 24, 25, and 26)
{¶16} There are twelve tabs consisting of redacted emails with draft revisions of the
Agreement attached to only ten of those emails. The other two emails contain portions of the draft
revisions pasted into the email. These emails involve the following employees of Equity Trust:
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Michael Dea, the President and Chief Financial Officer of Equity Trust; Jeffrey Bartlett, the Chief
Compliance Officer of Equity Trust; Jeffrey Desich, the Chief Executive Officer of Equity Trust;
and Richard Desich, the Chairman of the Board of Equity Trust.
{¶17} Mr. Dea averred in his affidavit that one of his job responsibilities was general
oversight and management of Equity Trust’s compliance and corporate governance, which
included managing the drafting, amending, and review of documents and forms used by Equity
Trust. In 2011, Equity Trust retained the law firm of Ulmer & Berne to provide legal advice
regarding the revision of the Agreement, including the drafting and reviewing of proposed
revisions. Attorneys Fein and Kahn rendered legal advice to Equity Trust on these legal issues.
{¶18} The Ulmer & Berne time entries reflect that Attorney Fein had conferences with
Mr. Dea and Mr. Bartlett regarding revisions to the language in the Agreement starting in March
2011, resuming in May 2011, and continuing through July 2011. Additionally, Mr. Dea’s affidavit
states that he spoke with Attorney Fein on multiple occasions regarding revisions to the
Agreement, that he and Mr. Bartlett worked directly with Attorney Fein discussing, preparing, and
reviewing revisions to the Agreement, and he directed Mr. Bartlett to prepare the revisions of the
Agreement in accordance with the legal advice from Ulmer & Berne and to forward the same to
Ulmer & Berne in order to obtain legal advice. There are multiple emails from Mr. Bartlett to
Attorneys Fein and Kahn forwarding various draft revisions of the Agreement for counsel’s
review.
{¶19} As for Messrs. Desich, there is an email, deemed privileged by the trial court (Tab
6), to them from Mr. Dea forwarding a draft revision of the Agreement and indicating that the draft
revisions and comments in the Agreement are from Attorney Fein. Additionally, there is an email,
deemed privileged by the trial court (Tab 22), from Mr. Bartlett to Messrs. Desich and Dea and
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copied to Attorney Fein which attached another version of the draft revisions of the Agreement
and indicated that Attorney Fein vetted the proposed language. Further, the amended privilege log
reflects there was an email, not contested by the Plaintiffs (ETC 060271), from Attorney Fein to
Messrs. Desich and Dea with the subject line “Revised IRA Agreements/Disclosure Statements.”
Lastly, the Ulmer & Berne billing records reflect Attorney Fein had conferences with Messrs.
Desich regarding the draft revisions to the Agreement.
{¶20} Based upon the Ulmer & Berne billing records, Mr. Dea’s affidavit, other emails
deemed privileged by the trial court, and the amended privilege log, there is substantial proof that
these officers and executives of Equity Trust were aware that their discussions in the redacted
emails and the various draft revisions attached to the redacted emails were for the dominant
purpose of relaying and obtaining legal advice.
{¶21} It is the Plaintiffs’ position that the drafts in this case were non-privileged
communications created by Equity Trust and funneled to Ulmer & Berne in an attempt to
improperly invoke the attorney-client privilege. The Plaintiffs’ characterization of the drafts and
what transpired is not supported by the record.
{¶22} Mr. Dea’s affidavit confirms that the Agreement was an existing document and
Equity Trust retained Ulmer & Berne to obtain legal advice to amend the Agreement. Thus, the
drafts in this matter are actually draft revisions to the existing Agreement, and not drafts of a new
agreement. The billing records from Ulmer & Berne confirm that prior to Equity Trust having
made the initial draft revisions, Attorney Fein reviewed the Agreement for the purpose of making
revisions and Attorney Fein consulted with Messrs. Dea and Bartlett regarding revisions to the
Agreement concerning disclosure requirements. Accordingly, the initial draft revisions prepared
by Equity Trust and sent to Attorney Fein were the result of legal advice from Attorney Fein and
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were forwarded to Attorney Fein for his review and further legal advice. The same holds true for
the other draft revisions prepared by Equity Trust and sent to counsel. Again, the billing records
show that Attorney Fein reviewed and analyzed the draft revisions and made further revisions to
the language in the Agreement. Also, Mr. Dea’s affidavit and the emails indicate that the draft
revisions were sent to corporate officers and employees to relay and obtain legal advice.
{¶23} Accordingly, the emails, Mr. Dea’s affidavit, and the billing records reflect that the
draft revisions of the Agreement were not routine documents created by Equity Trust and
exchanged between the corporate employees and then sent to Ulmer & Berne to avoid disclosure
under the guise of attorney-client privilege, but rather were documents prepared based upon legal
advice rendered and sent to counsel to obtain further legal advice. Compare U.S. ex rel. Fry v.
The Health Alliance of Greater Cincinnati, S.D.Ohio No. 1:03-cv-167, 2009 WL 5033940, *2
(Dec. 11, 2009), quoting Southeastern Pennsylvania Transp. Auth. v. Caremarkpcs Health, L.P.,
254 F.R.D. 253, 259 (E.D.Pa.2008) (routine non-privileged communications between non-attorney
corporate officers or employees did not become privileged because an attorney was copied on the
document or counsel was subsequently contacted). See Graff, 2012 WL 5495514, at *23 (attorney-
client privilege applied to draft letters created by corporate employees, revised by counsel, and
transmitted to and from counsel to further counsel’s legal advice).
{¶24} The Plaintiffs also argue that the redacted emails and draft revisions reflect Equity
Trust’s business decisions for amending the Agreement and are not protected by attorney-client
privilege. Without disclosing the content of the redacted emails in Tabs 9, 10, 12, 15, 18, 24, 25,
and 26, these emails discussing proposed language changes did not encompass any business
decisions or include any business advice. Nor did the attached draft revisions of the Agreement
contain any discussions of business decisions. Moreover, the Ulmer & Berne billing records only
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contain references to legal advice regarding disclosure requirements. Mr. Dea’s affidavit avers
that these discussions in the redacted emails concerned the substance of the proposed revisions
which were based upon the legal advice of Ulmer & Berne and the proposed revisions to the
Agreement were for the purpose of seeking further legal advice. Simply put, these redacted emails
and the draft revisions were relaying and seeking legal advice from counsel.
{¶25} The Ulmer & Berne billing records and other emails in the binder support Mr. Dea’s
averments. Prior to and during the time in which the redacted emails with the attached draft
revisions were exchanged between the officers and executives of Equity Trust, Mr. Bartlett
forwarded to Attorney Fein the proposed language changes to the Agreement. For instance, Tab
15 is a redacted email attaching version 8 of the draft revisions of the Agreement and sent by Mr.
Bartlett to Mr. Dea and copied to Messrs. Desich. Tab 16, ordered not to be produced by the trial
court, contains an email sent one minute later from Mr. Bartlett to Attorney Fein attaching the
same version 8 of the draft revisions. The billing records also show that during this same time
period Attorney Fein received, reviewed, and analyzed the draft revisions; conferenced multiple
times with Messrs. Bartlett, Dea, and Desich about the language in the Agreement and revisions
of the same; and prepared additional revisions to the Agreement.
{¶26} Contrary to the Plaintiffs’ suggestion, none of the redacted emails nor the attached
draft revisions contain any reference to the business decisions behind the changes to the
Agreement. Rather, the redacted emails and the attached draft revisions of the Agreement reflect
that the dominant purpose of these documents exchanged between these officers and executives of
Equity Trust was to relay and seek legal advice. Accordingly, the redacted emails in Tabs 25 and
26, in addition to the redacted emails and the attached drafts revisions in Tabs 9, 10, 12, 15, 18,
and 24, are protected by the attorney-client privilege.
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{¶27} Tabs 13, 17, and 19 are blank emails in which Jeffery Desich forwarded the
redacted emails and attached draft revisions in Tabs 12, 15, and 18 from his work email account
to his personal email account. Similarly, Tab 20 is also a blank email in which Richard Desich
forwarded the redacted email and attached draft revisions in Tab 18 from his work email account
to his personal email account. The forwarded emails and attachments in Tabs 13, 17, 19, and 20
are simply copies of the original emails and attachments in Tabs 12, 15, and 18. As we have
concluded that Tabs 12, 15, and 18 are protected by the attorney-client privilege, so too are Tabs
13, 17, 19, and 20.
Other draft revisions of the Agreement exchanged between
officers and executive employees of Equity Trust
(Tabs 1, 2, 4, 11, 14, 21, 27, and 29)
{¶28} The draft revisions of the Agreement contained in Tabs 1, 2, 4, 11, 14, 21, and 27
were all exchanged between Messrs. Desich, Dea, and Bartlett. As discussed above, Messrs.
Desich, Dea, and Bartlett were aware that the revisions to the Agreement were being done in
response to Attorney Fein’s legal advice and for the purpose of obtaining further legal advice. For
the same reasons discussed in the previous section, these draft revisions of the Agreement do not
reflect a business decision, but rather the dominant purpose of relaying and seeking legal advice.
Accordingly, the draft revisions of the Agreement contained in Tabs 1, 2, 4, 11, 14, 21, and 27 are
also protected under the attorney-client privilege. Additionally, Tab 29 is protected by the
attorney-client privilege because it is a blank email whereby Richard Desich forwarded to himself,
at another email address, an earlier email with draft revisions sent to him on July 10, 2011 from
Mr. Bartlett regarding changes to the Agreement.
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Draft revisions of the Agreement and a webpage exchanged between
Mr. Bartlett and Ulmer & Berne
(Tabs 28, 35, 38, and 39)
{¶29} The draft revisions of the Agreement contained in Tabs 28, 35, and 38 were
exchanged between Mr. Bartlett and Attorneys Fein and Kahn. As discussed above, there is
substantial evidence that Mr. Bartlett was aware that his communications with the attorneys at
Ulmer & Berne were for the dominant purpose of obtaining legal advice and these communications
do not reflect business decisions.
{¶30} The trial court determined that some of the final draft revisions of the Agreement
(Tabs 32 and 36) sent by Mr. Bartlett to counsel were privileged, but other final draft revisions of
the Agreement (Tabs 28, 35, and 38) sent by Mr. Bartlett to counsel during the same timeframe
were not. This Court cannot discern the trial court’s rationale for treating the final draft revisions
of the Agreement differently.
{¶31} The final draft revisions in Tabs 28, 35, and 38 were sent to counsel for their final
review and approval of the changes to the Agreement. The billing records reflect that counsel
reviewed the final draft revisions of the Agreement and the reformatted version of the final draft
revisions of the Agreement, engaged in research, further revised the language in the Agreement to
reflect law changes, worked on incorporating and finalizing revisions to the Agreement, and had
multiple conferences with Messrs. Bartlett and Dea regarding further changes to the Agreement.
These final draft revisions were reviewed, analyzed, and revised by counsel and were integral to
the give-and-take communications wherein legal advice was sought and given. See Wilkinson,
2014 WL 953546, at *3. Thus, these final draft revisions of the Agreement in Tabs 28, 35, and 38
were submitted to counsel for the dominant purpose of obtaining legal advice and are protected by
the attorney-client privilege.
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{¶32} Tab 39 is a printout of a page from Equity Trust’s website. This webpage was
modified in conjunction with the changes in the Agreement. Mr. Bartlett sent the revised webpage
to Attorney Fein asking him to review it and to advise if there was any “concern” with the
revisions. There is no indication that the webpage changes involved any business considerations.
Accordingly, the webpage was sent to counsel for the dominant purpose of seeking legal advice
and Tab 39 is protected by the attorney-client privilege.
Draft revisions of the Agreement exchanged between
Messrs. Bartlett and Dea and Ms. Wampleman
(Tabs 7 and 8)
{¶33} The draft revisions of the Agreement contained in Tab 7 were emailed from Mr.
Bartlett to Mr. Dea and copied to Kim Wampleman, while the draft revisions contained in Tab 8
were emailed from Ms. Wampleman to Mr. Dea and copied to Mr. Bartlett. As discussed above,
there is substantial evidence that Messrs. Bartlett and Dea were aware that the draft revisions of
the Agreement were for the dominant purpose of obtaining legal advice. The same is true for Ms.
Wampleman, an Internal Auditor at Equity Trust.
{¶34} Mr. Dea avers that Ms. Wampleman was involved with the revision project. This
is supported by the emails in these Tabs. In Tab 7, Mr. Bartlett’s email to Mr. Dea attaching
revision 4 of the Agreement states that “Kim and I have revised this per our discussion earlier
today.” Tab 8 shows that the next day, Ms. Wampleman emailed Mr. Dea version 5 of the draft
revisions with the message, “Newest revisions are underlined and highlighted.” Further, Ms.
Wampleman was copied on the redacted email in Tab 10 in which Mr. Bartlett discussed the
substance of Ulmer & Berne’s legal advice and attached version 6 of the draft revisions to Mr.
Dea. Additionally, the billing records from Ulmer & Berne contain an entry that Attorney Fein
had a conference with Messrs. Dea and Bartlett and Ms. Wampleman regarding the revisions of
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the Agreement. Based upon Mr. Dea’s affidavit, the emails, and the Ulmer & Berne billing
records, there is substantial proof that Ms. Wampleman was aware that the draft revisions to the
Agreement were for the dominant purpose of relaying and obtaining legal advice.
{¶35} As with the other draft revisions of the Agreement, these draft revisions do not
reflect business decisions. Rather, these draft revisions were part of the ongoing revision process
and reflect that the dominant purpose of these documents exchanged between Messrs. Dea and
Bartlett and Ms. Wampleman was to relay and seek legal advice. For these reasons, the draft
revisions of the Agreement contained in Tabs 7 and 8 are also protected under the attorney-client
privilege.
Draft revisions of the Agreement exchanged between
Mr. Bartlett and other employees of Equity Trust
(Tabs 30, 31, 33, 34, and 40)
{¶36} Tabs 30, 31, 33, 34, and 40 contain the final draft revisions of the Agreement that
were exchanged between Mr. Bartlett and five other employees of Equity Trust: Renee Tollett,
Brendan Hughes, Joseph Ramirez, Amanda Genther, and Shafayet Imam. As previously
discussed, Mr. Bartlett was aware that the draft revisions to the Agreement were for legal advice.
As for these five employees, Mr. Dea averred that they assisted him and Mr. Bartlett in
implementing the final changes to the Agreement, which were the result of continuous consultation
with Ulmer & Berne. Ms. Tollett is a Forms Specialist and Mr. Hughes is a Marketing Manager
at Equity Trust. The job titles for the other three employees are not identified. Mr. Dea’s averment
is further supported by the emails included for reference with each of these Tabs.
{¶37} Tab 30 contains an email chain, which started with Mr. Hughes emailing Ms.
Tollett the proposed language for the quarterly statement. The proposed language referred to the
“updated and revised” Agreement and summarized some of the changes in the Agreement. In a
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subsequent email from Mr. Hughes to Mr. Bartlett and Mr. Ramirez and copied to Ms. Tollett and
Ms. Genther, Mr. Hughes asked Mr. Bartlett to send him and Ms. Tollett the updated Agreement
so they could begin working on the document to get it ready to send with the quarterly statements.
Mr. Bartlett responded to all, but specifically addressed the email to Ms. Tollett and Mr. Hughes.
Mr. Bartlett forwarded to them the final version of the Agreement with the changes highlighted
and requested that they provide him a mocked up version of the Agreement by the end of the day.
{¶38} In Tab 31, Ms. Tollett responded to Mr. Bartlett’s email and included Messrs.
Hughes and Ramirez in the email and copied Ms. Genther. Ms. Tollett indicated that the attached
document was the updated Agreement. She then asked if there was any consideration given to
updating the dated references in the Agreement. She also indicated that there were “COLA
revisions” that should be included in the Agreement and asked if that should be done now.
{¶39} The final version of the Agreement in Tabs 34 and 40 reflected the changes
suggested by Ms. Tollett. Moreover, the billing records from Ulmer & Berne contain time entries
for Attorney Kahn indicating that he reviewed and revised the Agreement to reflect law changes
regarding threshold amounts.
{¶40} Additionally, the emails and revisions to the final Agreement in Tabs 33 and 34
reflect Ms. Tollett was primarily responsible for implementing the changes in the Agreement into
the final document for release with the quarterly statement. Tab 37, which the trial court ordered
not to be produced, also reflects Ms. Tollett implemented the final set of changes from counsel.
The final Agreement in Tab 37 was sent to Attorney Fein for his review in Tab 38, which has been
deemed an attorney-client communication by this Court. Based upon Ms. Tollett’s intricate role
in implementing the changes to the Agreement and her inquiry as to other possible changes based
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upon the law, there is substantial evidence that she was aware that the purpose of the final draft
revisions of the Agreement was to relay and obtain legal advice.
{¶41} Additionally, Mr. Hughes’ communications with Ms. Tollett regarding the
language for the quarterly statement notifying customers of the “updated and revised” Agreement
and the substance of some of the changes, in conjunction with his request to Mr. Bartlett for a copy
of the changes so they could begin working on preparing the final document, establishes that he
was aware that the purpose of the final draft revisions of the Agreement was to relay and obtain
legal advice.
{¶42} As for Mr. Ramirez and Ms. Genther, they were included in the initial emails
regarding the implementation of the changes into the Agreement and Ms. Tollett’s email asking
about other changes based upon the law. Additionally, Mr. Ramirez was copied on the email in
Tab 37 from Ms. Tollett which included an email chain with Mr. Bartlett regarding the status of
the changes. The inclusion of Mr. Ramirez and Ms. Genther in these emails supports that they too
were aware that the purpose of the final draft revisions of the Agreement was to obtain and relay
legal advice.
{¶43} Lastly, Mr. Imam was directed by Mr. Bartlett to contact Ms. Tollett for the location
of the changes in the Agreement. The email to Mr. Imam in Tab 40 contains an email chain
between Mr. Bartlett and Ms. Tollett regarding the implementation of the changes to the
Agreement, questions about the effective date of the changes, and confirmation that there were no
further changes. Based upon the email chain between Ms. Tollett and Mr. Bartlett that was
forwarded to Mr. Imam, there is proof that Mr. Imam was aware that the purpose of the final draft
revisions of the Agreement was to obtain and relay legal advice.
18
{¶44} Each of these Tabs contained revisions to the final Agreement. While these
employees were involved in preparing the Agreement for inclusion with the quarterly statements
and such action could be construed as a business issue, the predominant purpose of the revisions
to the final Agreement was to relay and seek legal advice and they are thereby protected by
attorney-client privilege. See Cooey, 269 F.R.D. at 650. See also In re OM Group Securities
Litigation, 226 F.R.D. at 587.
{¶45} At this stage of the revision process, Mr. Bartlett provided in Tab 30 the earlier
changes vetted by Ulmer & Berne to these employees to implement into the final Agreement. The
final draft revision of the Agreement in Tab 30 is the same document sent to Attorney Fein in Tab
28 and to Attorney Kahn in Tab 32. We have concluded Tab 28 is an attorney-client
communication, and the trial court ordered Tab 32 not to be produced.
{¶46} Additionally, Ms. Tollett’s inquiry as to additional changes to the Agreement based
upon law changes was for the primary purpose of obtaining legal advice. The billing records
confirm this purpose as there are time entries for counsel’s review and analysis of the final
Agreement, research and revision of the final Agreement to reflect law changes, and conferences
with Messrs. Bartlett and Dea regarding further revisions to the final Agreement. Based upon the
billing records, counsel provided a constant flow of legal advice during the finalization of the
Agreement.
{¶47} Further support that the final draft revisions of the Agreement were for the
predominant purpose of obtaining legal advice and not a business decision is the fact that the final
draft revisions of the Agreement implemented by Ms. Tollett were subsequently sent to counsel
for their review and analysis. For instance, version 3 of the final draft revisions in Tab 34 was sent
to Attorneys Fein and Kahn in Tab 35, and version 5 of the final draft revisions in Tab 37 was sent
19
to Attorney Fein in Tab 38. These final draft revisions were reviewed, analyzed, and revised by
Attorneys Fein and Kahn and were integral to the give-and-take communications with Equity Trust
wherein legal advice was sought and given. See Wilkinson, 2014 WL 953546, at *3.
{¶48} For the foregoing reasons, the predominant purpose of the final draft revisions of
the Agreement was to relay and seek legal advice, and Tabs 30, 31, 33, 34, and 40 are protected
by the attorney-client privilege.
Conclusion
{¶49} As a result of our independent review, we conclude that Tabs 1, 2, 4, 7, 8, 9, 10, 11,
12, 13, 14, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 38, 39, and 40 are
privileged attorney-client communications. Accordingly, the trial court erred when it ordered the
Equity Defendants to produce these documents to the Plaintiffs.
{¶50} The Equity Defendants’ sole assignment of error is sustained.
III.
{¶51} Equity Trust Company, Equity Administrative Services, Inc., Jeffrey Desich, and
Richard Desich, Sr.’s sole assignment of error is sustained. The interlocutory order of the Lorain
County Court of Common Pleas ordering the Equity Defendants to produce the documents to the
Plaintiffs is reversed.
Judgment reversed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
20
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellees.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
THOMAS R. LUCCHESI, BRETT A. WALL, JAMES H. ROLLINSON, and DAVID F.
PROANO, Attorneys at Law, for Appellants.
STUART E. SCOTT, DENNIS R. LANSDOWNE, NICHOLAS A. DICELLO, and KEVIN C.
HULICK, Attorneys at Law, for Appellees.