Riccardi v. Jackson
2:21-cv-00211
| S.D. Ohio | Sep 21, 2021Background:
- Plaintiffs sued under the Ohio Dormant Mineral Act seeking declaration that they own the Rutter mineral interest; defendant is alleged sole heir of the 1929 grantee.
- Plaintiffs engaged attorney Richard Yoss to search title and identify holders; they attached Yoss’s search notes to the Complaint and alleged the search met Ohio’s "reasonable diligence" standard.
- Defendant counterclaimed that Plaintiffs failed to exercise reasonable diligence (e.g., limited searches to Monroe County, no online searches) and served a third-party subpoena on Yoss for title searches, communications, billing, and related documents.
- Plaintiffs moved to quash the subpoena arguing (1) improper service under Fed. R. Civ. P. 45(a)(4) and (2) attorney-client privilege/work-product protection over the requested materials.
- The Magistrate Judge found no prejudice from any Rule 45 notice defect but held Plaintiffs waived privilege under Fed. R. Evid. 502 by voluntarily disclosing Yoss’s notes and placing his search and advice at issue; denial of the motion to quash followed.
- Court ordered Yoss to comply with the subpoena within 21 days.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 45(a)(4) notice to parties before serving a third-party subpoena | Subpoena was procedurally deficient; Plaintiffs lacked notice | Plaintiffs received notice and were not prejudiced | Court: Even if technical violation, Plaintiffs suffered no prejudice; move to merits and deny quash on this ground |
| Whether communications, notes, billing and related materials are privileged | Communications with Yoss and billing are protected by attorney-client privilege/work-product | Plaintiffs waived privilege by relying on Yoss’s search and attaching his notes; fairness requires disclosure | Court: Plaintiffs implicitly waived privilege as they put Yoss’s search and advice at issue and intentionally disclosed his notes; documents sought concern same subject matter — no privilege protects them |
| Scope of waiver (subject-matter waiver under Fed. R. Evid. 502) | Retaining counsel alone does not waive privilege; any waiver should be narrow | Disclosure of notes and assertion that search met "reasonable diligence" allows broader subject-matter waiver | Court: 502(a) applies — disclosure was intentional, requested materials concern same subject matter, and fairness requires disclosure; Yoss must produce requested materials |
Key Cases Cited
- Gerrity v. Chervenak, 162 Ohio St. 3d 694, 166 N.E.3d 1230 (Ohio 2020) (defines that surface owners must exercise "reasonable diligence" to identify holders but no bright-line rule)
- Albanese v. Batman, 148 Ohio St. 3d 85, 68 N.E.3d 800 (Ohio 2016) (failure to satisfy statutory notice precludes DMA analysis)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (purposes and scope of attorney-client privilege)
- Fisher v. United States, 425 U.S. 391 (1976) (limits on privilege to disclosures necessary to achieve its purpose)
- Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998) (attorney-client privilege promotes full client disclosure and loyalty)
- Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (implicit waiver by putting attorney advice in issue)
- Cooey v. Strickland, 269 F.R.D. 643 (S.D. Ohio 2010) (scope of waiver depends on factual circumstances)
- Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251 (S.D. Ohio 2011) (purpose of Rule 45(a)(4) notice provision is to allow objection; lack of prejudice negates relief)