Jacobs v. Equity Trust Co.
2021 Ohio 4349
| Ohio Ct. App. | 2021Background
- Plaintiffs (putative class) sued Equity Trust over investment losses in self-directed IRAs and sought discovery about revisions to Equity Trust’s custodial/account documents.
- Equity Trust produced thousands of documents but withheld many as privileged; the parties narrowed disputes and submitted disputed documents for in camera review.
- On appeal Equity Trust challenged a trial-court order compelling production of 18 documents (17 claimed attorney‑client privileged; 1 claimed bank‑examination privileged).
- Equity Trust relied on affidavits (Michael Dea and Jeffrey Desich) showing drafts and communications were exchanged with outside and in‑house counsel for legal advice; Plaintiffs argued many drafts were business‑driven and the privilege was not shown.
- The appellate court conducted de novo review, held the 17 draft documents were protected by the attorney‑client privilege, reversed the production order for those documents, and remanded for the trial court to address the bank‑examination privilege claim for the remaining document (Tab WW).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether draft documents and communications are protected by the attorney‑client privilege | Drafts are primarily business documents; privilege not shown; affidavit is boilerplate | Drafts were exchanged with outside and in‑house counsel for the dominant purpose of obtaining legal advice; affidavits identify each document | Court held the 17 disputed drafts were attorney‑client privileged and reversed the trial court’s production order |
| Whether a document (Tab WW) is protected by the bank‑examination privilege | Document is factual material, not protected; no need to notify regulator | Bank‑examination privilege belongs to the federal regulator (the Board); regulator must be given opportunity to assert the privilege; Plaintiffs did not notify the Board | Court sustained the argument that the issue was not properly addressed below and remanded for the trial court to allow the regulator an opportunity to assert or waive the privilege |
Key Cases Cited
- In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995) (bank‑examination privilege belongs to the federal regulator and the regulator must be given an opportunity to assert or defend the privilege)