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Daily Court Reporter - News Ohio EPA wins appeal on email disclosure, citing attorney-client privilege

 

Ohio EPA wins appeal on email disclosure, citing attorney-client privilege

ANNIE YAMSON, Daily Reporter Staff Writer

The 10th District Court of Appeals recently ruled that the Ohio Environmental Protection Agency was wrongfully compelled to produce emails that were subject to attorney-client privilege.

The decision issued by a three-judge appellate panel reversed the judgment of the Environmental Review Appeals Commission which had ruled to compel the discovery of certain communications between the EPA and its in-house legal counsel.

The case stemmed from a complaint filed by one Jenny Morgan who, in August 2014, alleged that an asphalt company was violating Ohio's environmental laws pertaining to air pollution.

In accordance with Ohio environmental law, EPA Director Craig Butler, in cooperation with supervisor in the EPA Division of Air Pollution Control, John Paulian, initiated an investigation of the allegations.

When the EPA was unable to verify that the asphalt company had violated the terms of its EPA permit, Morgan's complaint was dismissed.

Morgan appealed the dismissal to the Environmental Review Appeals Commission and, in connection with the appellate discovery process, the EPA inadvertently forwarded a document to Morgan that the EPA had identified as a confidential attorney-client communication.

Once the error was discovered, Morgan was asked to sequester the document and she complied but also moved the commission to compel the production of that email and several other documents.

The EPA opposed the motion, arguing that the documents were privileged communications protected from disclosure.

In May 2016, the commission granted Morgan's motion to compel with respect to eight documents. Three of those documents became the subject of the EPA's appeal to the 10th District court.

"The common-law attorney-client privilege broadly protects against any dissemination of information obtained in the attorney-client relationship," Judge Lisa Sadler wrote on behalf of the court of appeals.

"According to the Supreme Court ... the attorney-client privilege applies 'where legal advice of any kind is sought, from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, unless the protection is waived.'"

With regard to the three EPA emails - A, B and C - the commission found that they did not seek or provide legal advice and therefore were not subject to attorney-client privilege. But the 10th District court disagreed.

"In order to determine whether the three e-mail communications are privileged, it is necessary for this court to understand the context in which Paulian sent the e-mails," Sadler wrote. "Otherwise, the commission would have determined that the communications were not relevant to Morgan's appeal of EPA's decision to dismiss her verified complaint."

The appellate panel noted that each of the three e-mails at issue was prepared for and transmitted to EPA legal counsel and other EPA employees involved in the investigation and review of the verified complaint.

"Consequently, the protections of the attorney-client privilege are necessary to encourage frank communication between EPA investigatory staff and EPA in-house legal counsel, thereby promoting broader public interest in the observance of the law and administration of justice," Sadler wrote. "Our review of the communications identified as e-mails A, B and C reveal that each was sent by Paulian to EPA's in-house legal counsel, in their capacity as such, seeking some form of legal advice or assistance with regard to the director's investigation and review of Morgan's verified complaint."

The court of appeals also noted that Paulian simultaneously sent the e-mails to other EPA employees for the purpose of seeking technical, non-legal advice or assistance with regard to the complaint, but it held that his actions did not alter the fact that Paulian sent the emails in question to in-house legal counsel for the purpose of seeking legal advice.

"The record discloses no other purpose for Paulian to send emails of this nature to (the) attorneys," Sadler wrote. "Moreover, the attorney-client privilege does not require that the communication pertain purely to legal advice, but 'if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.'"

The appellate panel concluded that emails B and C were privileged communications and it reversed the commission's decision to compel their production.

With regard to email A, the court remanded the matter for a hearing to determine whether the EPA waived attorney-client privilege by producing an unredacted copy of the communication in discovery.

Judges Susan Brown and Betsy Luper Schuster joined Sadler to form the majority.

The case is cited Morgan v. Butler, 2017-Ohio-816.

Date Published: March 23, 2017

 

Copyright © 2017 The Daily Reporter - All Rights Reserved

 

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