2014 Ohio 5290
Ohio Ct. App.2014Background
- See sued ColorMatrix owners Haugh and Shaughnessy alleging a 1996 verbal promise to transfer ownership interest; See refiled after a prior voluntary dismissal.
- During discovery in a related Malburg case, ColorMatrix produced thousands of pages; among them was a personal memo drafted by See that was saved to the company server.
- Appellees used the memo at See’s 2014 deposition; See’s counsel asserted privilege but the parties disagreed whether privilege had been waived.
- Appellees served a subpoena on See’s counsel for communications with See; See and counsel refused and appellees moved to compel production and further deposition testimony.
- Trial court granted appellees’ motion without opinion; See appealed arguing attorney-client privilege was not waived.
- The court determined the memo contained some privileged content, treated the disclosure as voluntary but potentially inadvertent, and remanded for an evidentiary hearing using a balancing test to determine any waiver.
Issues
| Issue | See’s Argument | Appellees’ Argument | Held |
|---|---|---|---|
| Does the Malburg protective order bar appellees’ use of See’s memo? | Protective order covers documents produced in Malburg; memo should be protected. | Protective order doesn’t apply (entered after production) and memo isn’t confidential under its terms. | Memo is not covered by the protective order (memo lacks trade-secret/commercial confidential content and blanket confidentiality stamp not controlling). |
| Is the memo an attorney-client communication (privileged)? | Memo was a personal record, not direct attorney-client communication; thus not privileged. | Memo contains substance of legal advice and communications, so it includes privileged material. | Memo is not wholly privileged but contains privileged sentences recounting advice from See’s attorneys. |
| Did disclosure of the memo waive See’s attorney-client privilege? (Voluntary vs. inadvertent disclosure) | Disclosure was inadvertent (auto-saved to employer server without intent) and should not automatically waive privilege. | Disclosure was voluntary because See used employer equipment and had no expectation of privacy; waiver follows. | Disclosure was voluntary in form but may be inadvertent; waiver is not automatic — court must apply a case-by-case balancing test. |
| Proper procedure when inadvertent disclosure occurs | No hearing needed; privilege remains unless clear waiver. | Waiver based on production and deposition; compel production. | Trial court’s order compelling production vacated and remanded for a hearing applying balancing factors (precautions, promptness of remedy, scope, extent, fairness). |
Key Cases Cited
- Swidler & Berlin v. United States, 524 U.S. 399 (1998) (describing attorney-client privilege as a long-recognized privilege)
- Jackson v. Greger, 110 Ohio St.3d 488 (2006) (R.C. 2317.02(A) provides exclusive means to waive direct attorney-client communications)
- State v. McDermott, 72 Ohio St.3d 570 (1995) (explaining limited exceptions and waiver principles for attorney-client privilege)