Total Quality Logistics, L.L.C. v. BBI Logistics, L.L.C. , 2022 Ohio 1440 ( 2022 )

[Cite as Total Quality Logistics, L.L.C. v. BBI Logistics, L.L.C., 2022-Ohio-1440.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
TOTAL QUALITY LOGISTICS, LLC, :
Appellee, : CASE NO. CA2021-04-012
: OPINION
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:
BBI LOGISTICS LLC, et al., :
Appellants. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2019CVH00699
Dinsmore & Shohl LLP, and Eric K. Combs and Matthew J. Wiles, for appellee.
Brennan, Manna & Diamond LLC, and David M. Scott and Krista D. Warren, for appellants.
HENDRICKSON, J.
{¶1} Appellants, BBI Logistics, LLC, and Benjamin Humphries, appeal a judgment
of the Clermont County Court of Common Pleas granting the motion to compel discovery
filed by appellee, Total Quality Logistics, LLC (TQL). Appellants contend that the trial
court's discovery order requires them to disclose privileged and confidential information.
They argue that the trial court erred by not conducting an in camera review of the
information before ordering disclosure. For the reasons discussed below, we conclude that
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the trial court did not abuse its discretion by ordering appellants to disclose the information
without conducting an in camera review. We accordingly affirm the trial court's order.
I. Factual and Procedural Background
{¶2} On May 30, 2019, TQL filed an action against BBI and Humphries for a
temporary restraining order, preliminary injunction, and permanent injunction. The
complaint also included claims for breach of contract and misappropriation of trade secrets
against Humphries and tortious interference with contract and tortious interference with
business relations against BBI. TQL alleged that Humphries breached a noncompete
agreement that precluded him from working for a competitor or soliciting his former
customers for two years by going to work for BBI, one of TQL's direct competitors.
A. Discovery
{¶3} The parties agreed to an expedited discovery schedule, and on June 10,
2019, TQL served a first set of interrogatories and requests for production of documents on
BBI and Humphries. They included:
BBI Interrogatory No. 2: "Please identify all persons who are
owners, members, or interest holders of BBI and provide the
date upon which each person acquired their ownership or
membership interest."
BBI Request for Production No. 6: "Please produce all
documents that record, reflect, or relate to any and all
communications directed to or coming from Humphries since
June 1, 2017, including without limitation all text messages,
emails, letters, and/or phone records."
Humphries Request for Production No. 4: "Please produce all
documents that record, reflect, or relate to communications
between You and Brent Bosse, or anyone else from BBI, since
June 1, 2017, including without limitation all text messages,
LinkedIn messages, Facebook messages, emails, letters,
and/or phone records."
{¶4} On June 14, 2019, TQL received appellants' responses which included one
email and seven screenshots showing exchanges of text messages, only three of which
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were unredacted. A few days later, TQL's counsel spoke with appellants' counsel about
the limited production as well as the fact that most of the text messages were redacted. On
June 26, appellants produced their first privilege log and stated that "[w]ith regard to the first
discovery issue (lack of redacted communications), we have confirmed with our clients, and
there are no other responsive documents or information in their possession." The privilege
log lists seven text messages and for each states the "Item No.," "Sender," "Recipient," and
"Description." The sender for each message is Humphries and the recipient is Brent Bosse,
who left TQL several years ago to start BBI. The description for each message is the same,
the claimed privileges, "Attorney-Client Privilege and/or Work-Product" and "Protected by
Joint Defense/Common Interest Doctrine."
{¶5} On July 5, 2019, appellants produced a second privilege log listing 73 text
messages exchanged between Humphries and Bosse. In addition to the information stated
in the first privilege log, the second privilege log also states a "Description of Item," each of
which is described as "SMS Text," and the "Number of Characters" in each message. The
"Description" column from the first log is changed to "Description of Privilege," and the
description for each text message remains substantively the same, "Attorney-Client
Privilege and/or Work-Product" and "Joint Defense/Common Interest Doctrine."
{¶6} On July 11, 2019, TQL asked appellants for a revised privilege log that
included, among other things, the dates for each of the redacted communications so that
TQL could evaluate appellants' privilege claims. On July 17, TQL again asked appellants
for a revised privilege log listing the dates and describing the nature of the redacted
information. On July 26, TQL yet again asked appellants for a revised privilege log, and
later that day, appellants produced their third privilege log. Added to the third log is the date
and time for each text message.
{¶7} Upon review, TQL believed that appellants had listed new text messages and
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that the third privilege log was inaccurate. It also appeared to TQL that there were
significantly more text messages stored on Bosse's phone that had not been produced or
included in any of appellants' privilege logs. The next day, TQL notified appellants of the
discrepancies and asked them to explain. TQL also demanded that all communications
responsive to its discovery requests be produced. Appellants responded the next day, July
30, 2019, with an explanation that did not satisfy TQL as well as a fourth privilege log. The
fourth privilege log lists only 69 text messages and changes the "Description of Privilege"
for seven messages to "Confidential and Proprietary."
{¶8} On September 25, 2019, appellants served formal responses to TQL's
discovery requests. To the interrogatory asking BBI to identify all owners, members, or
interest holders of BBI (BBI Interrogatory No. 2), BBI responded: "Objection. This request
seeks information that is nether relevant nor reasonably calculated to lead to discoverable
information." Appellants also objected to certain requests for documents, stating that they
"call for BBI to provide TQL with its confidential and proprietary information." Appellants
objected to the requests for text messages, stating: "Request is overbroad, unduly
burdensome, harassing, and seeks information that is not relevant nor reasonably
calculated to lead to discoverable information. Subject to and not withstanding said
objection, the responding party states as follows: Please see documents previously
produced."
B. Motion to compel
{¶9} On October 15, 2019, TQL moved to compel appellants to disclose the identity
of all BBI's owners and to produce the text messages. After a long delay caused by the
Covid-19 pandemic, the trial court held a hearing on the motion in December 2020. At the
hearing, the court told appellants that their privilege log was inadequate. The court noted
that a possible solution was for appellants to submit the text message under seal for in
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camera review but indicated that it did not think that this was necessary. Appellants told
the court that they could add a statement or summary of each message to the privilege log,
which, they said, "would detail some more facts ideally to allow the Court to do that and to
avoid the Court having to devote its time to an in-camera inspection." (Tr. 20). TQL argued
that BBI had long failed to satisfy its duty under Civ.R. 26 and that it should not have another
opportunity to attempt compliance.
{¶10} Appellants failed to supplement their privilege log, and three months after the
hearing, on March 17, 2021, the trial court granted TQL's motion to compel. The court
found that appellants had failed to comply with Civ.R. 26(B)(8), having made only
"boilerplate assertions" of privilege and failing to provide any supporting evidence. The
court further found, based on the multiple, "woefully deficient" privilege logs, that appellants
failure to comply "was intentional and not based upon a reasonable interpretation of the
rule." Consequently, the court found that appellants had waived their right to assert
privilege. The court ordered them to produce the complete and unredacted text messages
listed in the privilege logs and any other responsive message not identified in the logs. The
court also ordered BBI to identify all its owners.
{¶11} BBI and Humphries appealed the trial court's discovery order.
II. Analysis
{¶12} Appellants assign two errors to the court, which we will review together.
{¶13} Assignment of Error No. 1:
{¶14} THE TRIAL COURT ERRED IN ORDERING BBI TO DISCLOSE ATTORNEY
CLIENT PRIVILEGED INFORMATION WITHOUT FIRST CONDUCTING AN IN CAMERA
REVIEW AND/OR EVIDENTIARY HEARING.
{¶15} Assignment of Error No. 2:
{¶16} THE TRIAL COURT ERRED IN ORDERING BBI TO DISCLOSE
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CONFIDENTIAL AND PROPRIETARY BUSINESS INFORMATION WITHOUT FIRST
CONDUCTING AN IN CAMERA REVIEW AND/OR EVIDENTIARY HEARING.
{¶17} The trial court compelled disclosure of text messages appellants claim are
protected by the attorney-client privilege and the common-interest and joint-client doctrines.
Appellants contend that their privilege log establishes the privileged nature of the
communications and that if they had provided a more detailed description as to the content
of the messages, they would have risked revealing the protected information. The trial court
also compelled disclosure of BBI's owners, and appellants claim that this information is
confidential. Appellants argue that the trial court abused its discretion by not reviewing the
text messages and ownership information in camera to determine the extent to which it is
protected from disclosure.
A. The standard of review
{¶18} Appellants contend that the applicable standard of review is de novo.
Generally, "whether the information sought is confidential and privileged from disclosure is
a question of law that is reviewed de novo." Med. Mut. of Ohio v. Schlotterer, 122 Ohio
St.3d 181, 2009-Ohio-2496, ¶ 13. However, the trial court here did not make any privilege
determinations. Rather, the issues in this appeal concern only the regulation of discovery.
An abuse-of-discretion standard applies when reviewing a trial court's disposition of
discovery issues. State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d 467, 469 (1998).
This includes a ruling on a motion to compel, id., and "the particular sanction to be imposed
for a discovery infraction," Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180, ¶ 26,
citing Nakoff v. Fairview General Hosp., 75 Ohio St.3d 254 (1996), syllabus. An abuse of
discretion connotes a decision that is "unreasonable, unconscionable, or arbitrary."
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
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B. The attorney-client privilege
{¶19} "The attorney-client privilege is one of the oldest recognized privileges for
confidential communications." Swidler & Berlin v. United States, 524 U.S. 399, 403, 118
S.Ct. 2081 (1998). It "exempts from the discovery process certain communications
between attorneys and their clients." Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio
App.3d 653, 2003-Ohio-7257, ¶ 7 (6th Dist.). The joint-client and common-interest
doctrines operate as exceptions to the general rule that voluntary disclosure of
communications made with one's attorney to a third party waives the attorney-client
privilege. MA Equip. Leasing I, L.L.C. v. Tilton, 10th Dist. Franklin Nos. 12AP-564 and
12AP-586, 2012-Ohio-4668, ¶ 26; Cooey v. Strickland, 269 F.R.D. 643, 652 (S.D.Ohio
2010). The joint-client doctrine "'applies when multiple clients hire the same counsel to
represent them on a matter of common interest,'" and the common-interest doctrine "applies
'when clients with separate attorneys share otherwise privileged information in order to
coordinate their legal activities.'" Id., quoting In re Teleglobe Communications Corp. v. BCE
Inc., 493 F.3d 345, 359 (3d Cir.2007).
C. Discovery of privileged and confidential information
{¶20} By rule, a party may generally obtain discovery as to any relevant and
"nonprivileged matter." Civ.R. 26(B)(1). When it comes to privileged matter, Civ.R.
26(B)(8)(a) pertinently provides that "[w]hen information subject to discovery is withheld on
a claim that it is privileged," the claim must "be supported by a description of the nature of
the documents, communications, or things not produced that is sufficient to enable the
demanding party to contest the claim."1 Civ.R. 26(C) provides that, upon motion, a court
may issue any protective order that justice requires to protect a party from annoyance,
1. Before July 1, 2020, this provision was found in Civ.R. 26(B)(6).
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embarrassment, oppression, or undue burden or expense, including one that limits the
scope of discovery or that orders submission of the material under seal or that protects
confidential "commercial information." The burden of showing that information "sought to
be excluded under the doctrine of privileged attorney-client communications rests upon the
parties seeking to exclude it." Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264 (1983).
{¶21} "Civ.R. 37 provides a mechanism by which discovery rules can be enforced
and specifically authorizes a trial court to make 'just' orders in response to discovery
violations." Gill, 2003-Ohio-180 at ¶ 26. "Civ.R. 37(A) authorizes and governs motions to
compel discovery; Civ.R. 37(B) authorizes sanctions against a party who fails to obey an
order to provide or permit discovery." Id.D. Claims of privilege
{¶22} A privilege log may be used to establish a claim that otherwise discoverable
information is protected by a privilege. Cousino v. Mercy St. Vincent Med. Ctr., 6th Dist.
Lucas No. L-17-1218, 2018-Ohio-1550, ¶ 47 (holding that "a privilege log is a discovery tool
that may be used to establish a claim of privilege" under Civ.R. 26); Hartzell v. Breneman,
7th Dist. Mahoning No. 10 MA 67, 2011-Ohio-2472, ¶ 19 (finding that Civ.R. 26 "essentially
requires the construction of a privilege log"). The privilege log must contain "enough
information regarding the withheld documents and the underlying attorney-client
communications 'to enable the demanding party to contest the claim[.]'" Id., quoting
Cargotec, 2003-Ohio-7257 at ¶ 13. Merely stating a "broad and generalized claim of
attorney-client privilege" for all responsive communications that are allegedly privileged is
insufficient. Id. at ¶ 44. In essence, there must be some factual basis to support the
privilege claim, such as "stat[ing] that communications were made between attorney and
client for the purpose of procuring legal advice or representation." Cargotec at ¶ 13.
{¶23} "[A] claim of privilege can be waived where no privilege log is submitted."
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Hartzell at ¶ 23; see also Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga No. 93604,
2010-Ohio-4668, ¶ 24 (noting that the "'"[f]ailure to assert the privilege objection correctly
can mean that the privilege is waived"'"); McPherson v. Goodyear Tire & Rubber Co., 146
Ohio App.3d 441, 444 (9th Dist.2001) (concluding that appellant waived the right to assert
the attorney-client privilege "because appellant did not satisfy its burden of showing the
privileged nature of these documents and material in a timely fashion"). A trial court has
discretion to determine waiver on a case-by-case basis. Dixon at ¶ 22-25.
{¶24} TQL has long maintained that the information about the text messages in the
privilege log is not sufficient to enable it to contest appellants' privilege claim. The trial court
agreed and advised appellants of this at the hearing on TQL's motion to compel. Yet
appellants failed to do anything to address the matter. The trial court found that they had
intentionally failed to satisfy their Civ.R. 26(B) burden and so waived their right to assert
attorney-client privilege.
{¶25} Our review of appellants' privilege log reveals that it lists each text message
withheld and for each states the sender, recipient, number of characters, and date and time
sent. The log does not give any indication what the text messages are about and does not
state that they were made for the purpose of discussing legal advice or representation or
contained discussion of legal matters. We agree with the trial court's determination that this
is insufficient to allow TQL to contest the privilege claims.
{¶26} Appellants intentionally failed to comply with Civ.R. 26(B), and the court's
waiver finding was, in essence, a sanction against appellants for their discovery violation.
See Civ.R. 37(B). Appellants were repeatedly told, from the beginning, that more
information was needed, but they failed to do anything about it. Over a year elapsed from
the time TQL filed its motion to compel until the date the trial court granted the motion. In
all that time, appellants did not move for a protective order, did not submit the text messages
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to the trial court under seal, and did not request an in camera review. Nor did appellants
try to supplement the information in the privilege log, despite having many months to do so.
E. In camera review
{¶27} Appellants do not spend much time arguing the sufficiency of their privilege
log. In fact, they merely state that it "clearly established the nature of the communications
and identified that they were protected by attorney-client privilege." They also do not
challenge the trial court's finding that they waived the right to assert a claim of privilege.
What appellants argue instead is that the trial court should have conducted an in camera
review before ordering disclosure.
{¶28} We have said that "[w]hether to hold an in camera hearing on evidentiary
issues is left to the trial court's discretion[.]" State v. Hoop, 134 Ohio App.3d 627, 639 (12th
Dist.1999), citing United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619 (1989); see also
Marcum v. Miami Valley Hosp., 2d Dist. Montgomery No. 26318, 2015-Ohio-1582, ¶ 20
(noting that an in camera review "is not always required, and the trial court does have
discretion to consider and order alternative options"). While conducting an in camera review
of allegedly privileged material is a good idea, "[a] party is not entitled, as a matter of right,
to an in camera hearing when privilege is asserted." Id. Rather, "[b]efore engaging in an
in camera review to determine whether privilege is applicable, 'the judge should require a
showing of a factual basis adequate to support a good faith belief by a reasonable person'
that in camera review of the materials may reveal evidence establishing an applicable
privilege or that the privilege is outweighed by other rights." Id., quoting Zolin at 572. See
also Hartzell, 2011-Ohio-2472 at ¶ 23 (holding that "the burden is on the party claiming
privilege so that an in-camera hearing is unnecessary if that party fails to show a factual
basis for believing in good faith that the records are not properly discoverable"); Pinnix v.
Marc Glassman, Inc., 8th Dist. Cuyahoga Nos. 97998, and 97999, 2012-Ohio-3263, ¶ 11
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(finding that "a trial court does not need to conduct an in camera review in every instance
that a privilege is asserted" and that "an in camera inspection is not necessary when there
is no 'factual basis' justifying the trial court's in camera review").
{¶29} The trial court found that appellants failed to establish a factual basis for their
privilege claims. The privilege logs were insufficient, and appellants did not submit any
additional evidence. As such, the trial court reasonably determined that an in camera
review was unnecessary.
{¶30} Perhaps more importantly, though, appellants waived in camera review by not
requesting it. See In re Estate of Haller, 116 Ohio App.3d 866, 871-872 (10th Dist.1996)
(in camera review waived because not requested); Gill, 2003-Ohio-180 at ¶ 32 (holding the
same). Appellants argue against waiver, citing caselaw saying that not requesting in
camera review does not necessarily result in waiver. The cases that appellants rely on are
distinguishable on their facts. While we agree that not requesting in camera review does
not waive it necessarily, we see no good reason in this case why the trial court was required
to conduct such a review sua sponte. In the ample time they had, appellants, as the parties
seeking to protect the information as privileged, could have and should have filed a motion
requesting that the court conduct an in camera review. Accordingly, under the
circumstances presented in this case, we conclude that the trial court did not abuse its
discretion by not sua sponte conducting an in camera review of the alleged privileged
materials.
F. The allegedly confidential information
{¶31} Lastly, the trial court also ordered disclosure of BBI's ownership information,
which appellants claim is confidential. BBI did not seek a protective order under Civ.R.
26(C) or seek in camera review of this information. We conclude that it was not an abuse
of discretion for the trial court to order disclosure when BBI failed to take the proper steps
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to protect the information.
III. Conclusion
{¶32} The trial court did not determine that the information in the text messages is
not privileged or that BBI's ownership information is not confidential, and we offer no opinion
on either issue. We hold only that the trial court did not abuse its discretion by ordering
disclosure of the text messages and ownership information without first conducting an in
camera review. The two assignments of error presented are overruled, and the trial court's
judgment is affirmed.
{¶33} Judgment affirmed.
PIPER, P.J., and BYRNE, J., concur.
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