Morgan v. Butler
2017 Ohio 816
| Ohio Ct. App. | 2017Background
- Jenny Morgan filed a verified complaint under R.C. 3745.08 alleging air-permit violations by Scioto Materials; the Ohio EPA (Director Butler) investigated and dismissed the complaint.
- Morgan appealed the dismissal to the Environmental Review Appeals Commission (the commission) under R.C. 3745.04; the Attorney General represents the Director.
- During discovery, EPA inadvertently produced documents and then claimed attorney-client privilege for several emails; EPA asked Morgan to sequester one inadvertently produced unredacted email under Civ.R. 26(B)(6)(b).
- Morgan moved to compel production and for in camera review; the commission ordered production of eight documents and denied as to three others; EPA appealed to the Tenth District.
- The disputed items were three emails (A, B, C) from EPA supervisory staff (Paulian) to in-house counsel seeking review or advice about materials and the Director’s dismissal letter.
- The Tenth District reviewed de novo whether the communications were protected by the common-law attorney-client privilege and whether any inadvertent disclosure waived privilege.
Issues
| Issue | Plaintiff's Argument (Morgan) | Defendant's Argument (Butler/EPA) | Held |
|---|---|---|---|
| Whether Emails A–C are protected by the attorney-client privilege | Emails are not communications seeking legal advice and thus not privileged | Emails were sent to in-house counsel for legal advice regarding the complaint and are privileged | Court held all three emails are privileged communications |
| Whether an attorney-client relationship exists between EPA staff and in-house counsel | N/A (relationship not disputed) | EPA contends in-house counsel were acting in legal capacity; privilege applies | Court found the attorney-client relationship existed and counsel acted in legal capacity |
| Whether EPA waived privilege for Email A by inadvertent unredacted production | Privilege waived because precautions insufficient | EPA promptly notified, requested sequester per Civ.R. 26(B)(6)(b) — no waiver without hearing | Court concluded Email A is privileged but remanded for a hearing on waiver under a case-by-case balancing test |
| Standard of review for privilege determination | Commission's factual-findings standard (abuse of discretion) | De novo review appropriate for legal question of privilege | Court applied de novo review and reversed commission's order to produce the emails |
Key Cases Cited
- Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209 (recognizing attorney-client privilege principles)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (2005) (attorney-client privilege applies to government agencies and in-house counsel)
- State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191 (2013) (in-camera inspection supported withholding where documents were gathered during attorney investigation)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (policy rationale for protecting communications to encourage candor)
- State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537 (2009) (privilege covers communications that facilitate legal services, not only pure recitation of facts)