N.E. Monarch Constr., Inc. v. Morganti Ent., Inc. ( 2022 )

[Cite as N.E. Monarch Constr., Inc. v. Morganti Ent., Inc., 2022-Ohio-3551.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
N.E. MONARCH CONSTRUCTION,
INC., :
Plaintiff-Appellee, :
No. 111236
v. :
MORGANTI ENTERPRISE, INC.
ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART
RELEASED AND JOURNALIZED: October 6, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-915833
Appearances:
Law Offices at Pinecrest and David A. Corrado, for
appellee.
Hanna Campbell & Powell LLP, Kenneth A. Calderone, R.
Brian Borla, and Anne M. Markowski; Brouse McDowell
LPA, James T. Dixon, and Teresa G. Santin, for
appellants.
MARY J. BOYLE, J.:
Defendants-appellants, Morganti Enterprise, Inc. and Alan Morganti
(jointly, “Morganti Enterprise”), appeal the trial court’s order compelling
production of documents to plaintiff-appellee, N.E. Monarch Construction, Inc.
(“Monarch Construction”), that Morganti Enterprise claims are protected by
attorney-client privilege. For the reasons that follow, we affirm in part and reverse
in part.
I. Facts and Procedural History
The facts and procedural history of this case are provided in N.E.
Monarch Constr., Inc. v. Morganti Ent., 8th Dist. Cuyahoga No. 109845, 2021-
Ohio-2438:
Monarch Construction filed suit against Morganti Enterprise, a
subcontractor, on two construction projects in two separate cases,
alleging claims of breach of contract, negligence, and fraud, as well as
seeking to pierce the corporate veil. The lawsuits were consolidated by
the trial court and, on November 7, 2019, Monarch Construction
submitted 55 interrogatories and 67 requests for production of
documents to Morganti Enterprise. Within its discovery requests,
Monarch Construction propounded the following discovery requests
on Morganti Enterprise:
Interrogatory No. 13: Identify any and all evidence within your
possession and/or knowledge that supports each and every
response and/or affirmative defense as contained in your First
Amended Answer and each and every allegation in your
Counterclaim.
Request for Production of Documents No. 23: Any and all
Documents, notes, memos and/or correspondence between
[Morganti Enterprise] and any other person and/or entity on
any matter arising out of and/or connected to this Lawsuit.
Morganti Enterprise responded in part to the discovery requests on
February 3, 2020. On February 12, 2020, Monarch Construction filed
a motion to compel and motion for sanctions asserting Morganti
Enterprise provided inadequate responses and asserted baseless
objections. On February 25, 2020, Morganti Enterprise filed a
combined motion to strike plaintiff’s motion to compel and motion to
stay briefing on motion to compel in which it alleged Monarch
Construction did not make reasonable attempts to obtain the discovery
it sought to be compelled. On February 27, 2020, Monarch
Construction responded, asserting it did make reasonable attempts to
resolve discovery disputes. Morganti Enterprise filed a reply to
Monarch Construction’s brief. On March 16, 2020, after a pretrial
conference was held, the trial court ordered the discovery motions to
be held in abeyance. On June 3, 2020, the trial court held a pretrial
conference and set a deadline of June 12, 2020, for Morganti
Enterprise to file a responsive pleading to Monarch Construction’s
motion to compel discovery.
On June 12, 2020, Morganti Enterprise filed a brief in opposition to
Monarch Construction’s motion to compel discovery in which they
indicated they served several supplemental discovery responses to
Monarch Construction. As to interrogatory No. 13, Morganti
Enterprise objected and asserted that the interrogatory sought
information they need not supply as the interrogatory sought
“attorney’s work product and strategies” and facts regarding
affirmative defenses. They further stated that they provided
supplemental information as to request for production of documents
No. 23 but objected to the request where it sought “information
protected by the work product privilege.”
On June 19, 2020, Monarch Construction replied to Morganti
Enterprise’s brief noting the response to interrogatory No. 13 was an
objection upon attorney work product and defense strategies but
argued that Morganti Enterprise only “responded to the affirmative
defenses aspect of the interrogatory and ignored the counterclaim
allegation and the answer responses aspect of the interrogatory.” As to
the request for production of documents No. 23, Monarch Construction
noted that Morganti Enterprise asserted privilege but did not provide a
privilege log and stated that “[o]nce a privilege log is produced then
these documents can be produced to the Court for an in-camera
inspection to see if a privilege truly applies.”
On June 23, 2020, the trial court granted Monarch Construction’s
motion to compel in its entirety. The trial court denied all of Morganti
Enterprise’s objections to the interrogatories posed and ordered
Morganti Enterprise to answer the interrogatories with specificity. The
trial court also denied all Morganti Enterprise’s objections to the
request for production of documents and ordered Morganti to identify
with specificity the documents by indicating the Bates stamp numbers
that contain the response to each of the document production requests.
The trial court ordered submission of the discovery materials within 30
days.
On July 22, 2020, Morganti Enterprise filed a motion to stay
proceedings at 11:16 a.m., a notice of appeal at 4:13 p.m., and a notice
of service of their sixth response to discovery at 4:32 p.m. Within the
notice of service of their sixth response to discovery, Morganti
Enterprise iterated its objections as to interrogatory No. 13 and
identified certain documents it supplied to Monarch Construction as
being in support of its counterclaim. As to request for production of
documents No. 23, Morganti Enterprise iterated its objection based on
work product privilege and stated it did not produce certain documents
that were withheld on the basis of work product or attorney client
privilege, referencing an attached privilege log. After the appeal was
filed, Monarch Construction filed a motion to dismiss, which was
referred to this panel for consideration.
Id. at ¶ 2-7.
Morganti Enterprise’s sole assignment of error was that “[t]he trial
court erred by granting [Monarch Construction’s] motion to compel discovery of
material that is privileged under the work product doctrine and attorney client
privilege.” Id. at ¶ 8. Specifically, Morganti Enterprise reiterated its objections to
Monarch Construction’s interrogatory No. 13 and request for production of
documents No. 23 on the grounds that these discovery requests required production
of privileged materials. Id. at ¶ 9.
This court denied Monarch Construction’s motion to dismiss the
appeal because Morganti Enterprise could bring an interlocutory appeal of an order
compelling production of privileged materials under R.C. 2505.02(B)(4)(a).
However, we found that the trial court abused its discretion by summarily ordering
Morganti Enterprise to produce the requested materials without first holding an in
camera inspection to determine whether the two challenged discovery requests
sought privileged materials. Id. at ¶ 16. We remanded the matter to the trial court
to hold an in camera review and make this determination. Id. at ¶ 17.
Following our remand, the trial court ordered Morganti Enterprise to
submit under seal hard copies of any documents responsive to Monarch
Construction’s interrogatory No. 13 and request for production of documents No. 23
and a privilege log specifically identifying any documents it claimed were privileged.
On November 5, 2021, Morganti Enterprise filed a notice that it submitted the
requested documents to the trial court for in camera review. On January 25, 2022,
the trial court issued an in camera review journal entry ordering Morganti
Enterprise to produce 25 emails, several with redactions identified by the trial court.
On February 1, 2022, Morganti Enterprise filed a notice of document production of
7 of the 25 emails that the trial court had ordered it to produce, but reasserted that
the remaining 18 emails were protected by the attorney-client privilege. That same
day, Morganti Enterprise filed a notice of appeal.
Morganti Enterprise appeals again, raising a single assignment of
error for review:
The trial court erred by ordering [Morganti Enterprise] to disclose
communications protected by the attorney-client privilege.1
1 At appellate oral argument in this case, Morganti Enterprise was notified that the
record provided to this court did not contain the allegedly privileged documents. On
August 16, 2022, Morganti Enterprise submitted the documents to this court under seal
pursuant to our sua sponte order to complete the record. App.R. 9(E).
II. Law and Analysis
Morganti Enterprise argues that the trial court erred by ordering it to
produce 18 emails that contain discussions between defense counsel and Alan
Morganti, or employees of Morganti Enterprise, about the defense of the lawsuit.
Morganti Enterprise alleges that these emails are protected by the attorney-client
privilege.
On appeal from an interlocutory order, such as an order compelling
the production of privileged materials, the appellant must demonstrate that “the
order determines the privilege issue and prevents a judgment in favor of the
appellant regarding that issue,” R.C. 2505.02(B)(4)(a), and that “the harm caused
by the privilege-related discovery order cannot be meaningfully or effectively
remedied by an appeal after final judgment,” R.C. 2505.02(B)(4)(b). Burnham v.
Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 20.
An order compelling the production of materials allegedly protected
by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(a) “because it would be
impossible to later obtain a judgment denying the motion to compel disclosure if the
party has already disclosed the materials.” Id. at ¶ 21. The order also satisfies R.C.
2505.02(B)(4)(b) because the “[p]rejudice * * * inherent in violating the
confidentiality guaranteed by the attorney-client privilege” would not be adequately
remedied by an appeal after final judgment. Id. at ¶ 30. Therefore, any order
compelling the production of materials allegedly protected by the attorney-client
privilege is a final, appealable order under R.C. 2505.02(B)(4). Id.
Generally, a discovery order is reviewed for an abuse of discretion.
Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514,
¶ 13, citing Tracy v. Merrell Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 151-152,
569 N.E.2d 875 (1991). However, when the discovery order resolves a claim that the
information sought is confidential and privileged from disclosure, it is a question of
law that must be reviewed de novo. Id., citing Med. Mut. of Ohio v. Schlotterer, 122
Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
Civ.R. 26(B)(1) permits parties to obtain discovery “regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action.” Any claim of attorney-client privilege that is not governed by R.C.
2317.02(A), which sets forth a testimonial privilege, is governed by the common law.
State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537,
2009-Ohio-1767, 905 N.E.2d 1221, ¶ 24, citing State ex rel. Leslie v. Ohio Hous. Fin.
Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 18. The common-
law privilege is broader than the statutory privilege and “‘protects against any
dissemination of information obtained in the confidential attorney-client
relationship.’” Leslie at ¶ 26, quoting Amc v. Huffstutler, 61 Ohio St.3d 343, 348,
575 N.E.2d 116 (1991).
The attorney-client privilege arises
“‘(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.’”
State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d
467, ¶ 27, quoting Leslie at ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-356 (6th
Cir.1998). The communication does not have to contain “‘purely legal analysis or
advice to be privileged,’” for “‘if a communication between a lawyer and client would
facilitate the rendition of legal services or advice, the communication is privileged.’”
Toledo Blade Co. at ¶ 27, quoting Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869,
875 (5th Cir.1991).
“‘The [attorney-client] privilege applies when legal advice of any kind
is sought from the legal advisor in that capacity and the client’s confidential
communication relates to that purpose.’” Id. at ¶ 28, quoting Leslie at ¶ 29. The
privilege protects the attorney-client communication from disclosure; it does not
prevent disclosure of the underlying facts. Pales v. Fedor, 2018-Ohio-2056, 113
N.E.3d 1019, ¶ 23 (8th Dist.), citing Plogger v. Myers, 2017-Ohio-8229, 100 N.E.3d
104, ¶ 9 (8th Dist.). “Communications made by corporate employees acting at
direction of corporate superiors in order to secure legal advice for [the] corporation
from corporate counsel are also protected by the attorney-client privilege.” Leslie at
¶ 22, citing Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584(1981).
We note that the party asserting the privilege carries the burden of
proving that it applies to the requested information. Pales at ¶ 22, citing Lemley v.
Kaiser, 6 Ohio St.3d 258, 263-264, 452 N.E.2d 1304 (1983); Waldmann v.
Waldmann, 48 Ohio St.2d 176, 178, 358 N.E.2d 521 (1976); In re Martin, 141 Ohio
St. 87, 103, 47 N.E.2d 388 (1943).
Here, the trial court’s in camera review journal entry refers to each of
the 25 emails that it ordered Morganti Enterprise to produce by its identification
number, its date and time stamp, and its sender and recipients. We will refer to each
email by its ID number and, where necessary, distinguish a particular email from
others within an email chain by referring to it by its date and time stamp. The 7
emails Morganti Enterprise produced in response to the trial court’s order are
designated by ID Nos. 79, 86, 89, 130, 151, 198, and 402 (date and time stamped
April 21, 2020, at 10:20 a.m.). The 18 emails withheld by Morganti Enterprise are
designated by the ID Nos. 55, 72, 85, 152, 170, 171, 204, 292, 308, 342, 381, 402
(date and time stamped April 16, 2020, at 2:51 p.m.), 431, 435, 442, 480, 506, and
566. Each of these emails includes correspondence between counsel for Morganti
Enterprise and Alan Morganti, or an employee of Morganti Enterprise.
Reviewing the emails designated by ID Nos. 55, 72, 85, 170, 171, 204,
342, 402 (date and time stamped Thursday, April 16, 2020, at 2:51 p.m.), 431, 435,
442, 480, and 566 in the context of their respective email chains, each of these
emails contains comments from defense counsel to Morganti Enterprise about the
status of the lawsuit or information written or produced by either Alan Morganti or
an employee of Morganti Enterprise at the request of counsel so that counsel could
render it legal advice. These are privileged attorney-client communications. See
Toledo Blade Co., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, at ¶ 27;
Leslie, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, at ¶ 22.
The emails designated by ID Nos. 292, 308, 381, and 506 include Alan
Morganti’s comments on the case, which he sent to his counsel for review and
response. Specifically, the email designated by ID No. 292 contains Alan Morganti’s
comments on a draft email that his counsel planned to send to opposing counsel,
additional information that could be added to the draft email, and Alan Morganti’s
thoughts about Morganti Enterprise’s position in the case. Similarly, the email
designated by ID No. 381 contains Alan Morganti’s comments on claims made by
Monarch Construction, as well as interlinear responses drafted by Morganti
Enterprise’s counsel. The trial court ordered the redaction of counsel’s interlinear
responses from the email designated by ID No. 381; however, the interlinear
responses still indicate that Alan Morganti’s unredacted comments were intended
to obtain legal advice. Likewise, in the email designated by ID No. 308, Alan
Morganti informs his counsel of a recent development in the case and his desired
outcome. In the email designated by ID No. 506, Alan Morganti directly requests
legal services from his counsel. We therefore find that the emails designated by ID
Nos. 292, 308, 381, and 506 are privileged attorney-client communications.
Unlike the individual emails discussed above, the trial court ordered
Morganti Enterprise to produce the email designated by ID No. 152 in its entirety.
This email includes a chain of emails between counsel for both parties concerning
scheduling matters. Because these emails are between the parties’ attorneys and not
between Morganti Enterprise and its attorney, they are not attorney-client
communications. The only exception is the final email in this chain (date and time
stamped July 8, 2020, 5:05 p.m.), which clearly contains legal advice sent by
Morganti Enterprise’s counsel to Alan Morganti concerning an appeal of the trial
court’s discovery order. The final email in this chain is protected by the attorney-
client privilege.
Based on our review of the 18 emails Morganti Enterprise withheld
from document production, we find that Morganti Enterprise properly withheld the
emails designated by ID Nos. 55, 72, 85, 152 (date and time stamped July 8, 2020,
5:05 p.m.), 170, 171, 204, 292, 308, 342, 381, 402 (date and time stamped Thursday,
April 16, 2020, 2:51 p.m.), 431, 435, 442, 480, 506, and 566 as privileged attorney-
client communications containing legal advice or information facilitating the
rendition of legal advice. Toledo Blade Co., 121 Ohio St.3d 537, 2009-Ohio-1767,
905 N.E.2d 1221, at ¶ 27. However, excepting the email date and time stamped July
8, 2020, 5:05 p.m., Morganti Enterprise must produce the remaining emails
contained in the email designated by ID No. 152 because they do not contain
attorney-client communications.
Morganti Enterprise’s sole assignment of error is sustained in part
and overruled in part.
III. Conclusion
Accordingly, we reverse the trial court’s judgment compelling
production of the emails designated by ID Nos. 55, 72, 85, 152 (date and time
stamped July 8, 2020, 5:05 p.m.), 170, 171, 204, 292, 308, 342, 381, 402 (date and
time stamped Thursday, April 16, 2020, 2:51 p.m.), 431, 435, 442, 480, 506, and
566. We hold that these emails are protected by the attorney-client privilege.
However, we affirm the trial court’s judgment compelling production of the
remaining emails contained in the email designated by ID No. 152.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR