Bookmark this page on your mobile

QR Code image

What is this?

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


Child support attorney wins statewide award

Adam Fohlen, Managing Attorney for Montgomery County’s Child Support Enforcement Agency, recently received the Key to Our Success award from the Ohio Child Support Director’s Association (OCDA).

The Cincinnati Zoo’s Baby Fiona update

On Thursday, March 16 Fiona ate hay for the first time! Not just any hay, but hay that had been pre-chewed by her mom. Bibi’s saliva helps exposes Fiona’s gut to the good healthy bacteria that will help her body process vegetation. Fiona’s mouth is producing extra saliva to help with swallowing and digestion. She doesn’t have molars yet, so the saliva starts breaking down the hay and makes it soft enough to swallow.

University of Dayton will provide up to $500,000 to faculty and staff for research

The University of Dayton College of Arts and Sciences, School of Engineering and Hanley Sustainability Institute, will provide up to $500,000 to support faculty and staff research in science, technology, engineering and math the next two summers.

WSU’s College of Nursing & Health programs ranked among best in the nation

U.S. News & World Report has ranked Wright State University’s Master of Nursing program as among the best graduate education programs in the nation in 2018.

Accident Investigation Board determines maintenance error damaged JSTARS aircraft

Drain holes in the radome of an E-8C Joint Surveillance Target Attack Radar System (JSTARS) aircraft were left covered after depot maintenance allowing water to accumulate and damage some of the aircraft's electrical systems, according to a recently released Air Force Materiel Command Accident Investigation Board report. AFMC administered the contract while the plane underwent depot maintenance.

WSU’s Davis selected to Slam Dunk Championship

Wright State’s Steven Davis has been selected to the Slam Dunk Championship roster for the 29th annual State Farm College Slam Dunk & 3-Point Championships at Grand Canyon University Arena in Phoenix on Thursday, March 30, Intersport announced. Davis is one of eight men’s college basketball players selected for the event that will air live on ESPN at 10 p.m. ET. He was invited to take part in the Slam Dunk Championship after being recognized as one of the nation’s finest slam dunk performers.

University of Dayton hoops season ticket deposits being accepted

Season ticket deposits are now being accepted for the 2017-18 men's basketball campaign online through My Account Manager and at the UD ProSource Ticket Office.

Supreme Court of Ohio: Justices will hear strip club case as high court hits the road

The Ohio Supreme Court will take its show on the road next month as it hears oral arguments in three cases in Morgan County on April 6.

Attorney reprimanded for forging client's signature

The Ohio Supreme Court has issued a public reprimand for a Westerville attorney who lied to a tribunal.

Ohio man sentenced to more than six years in prison for $420,000 fraud involving concert tickets

A Bay Village man was sentenced to more than six years in prison for fraudulently buying concert and event tickets worth hundreds of thousands of dollars with stolen credit cards and then reselling them, law enforcement officials said.

Team building? Of course there's an app for that

It seems counterintuitive that the smartphone, often blamed for causing its operator to direct his gaze downward, ignoring the environs around him and anyone inhabiting them, could be used as a team building tool.

Springtime is the time to be prepared for what Mother Nature can bring

Ohio weather can be unpredictable, but it doesn’t have to be surprising

Plan would make it illegal to demand money to remove mugshots from websites

A measure that would make it a criminal offense for mugshot tabloid publications and websites to demand payment to remove, correct, modify or refrain from publishing details of an individual's criminal record cleared the Ohio House of Representatives recently.

Proposed legislation designed to make it easier to cast in-person absentee votes

Prompted by a working relationship with the Ohio Association of Elections Officials, a Marysville lawmaker has sponsored legislation to update a variety of voter laws she believes are in the best interest of all Ohio voters.

Auditor Yost to hold cyber fraud prevention training throughout Ohio

With cyberattacks on governments increasing, Auditor Dave Yost has announced a series of training seminars to help local government leaders in Ohio combat cyberattacks. Already, more than 560 local officials have registered for the free training.

Ohio State grad programs rank high in mag's annual list

U.S. News & World Report's latest edition of America's Best Graduate Schools gives high marks to several Ohio State University graduate and professional programs, including a No. 1 ranking to the technical-vocational education program.

Attorney General DeWine warns more tax scams reported as filing deadline nears

Ohio Attorney General Mike DeWine recently warned that more consumers are reporting tax-related scams with about four weeks remaining until the April 18 filing deadline.

Real estate contracts: Be careful when using email and voicemail

Q: I thought a real estate contract couldn’t be enforced unless it was in writing, but a friend just told me I could make a contract through email or voicemail. Is that true?

Supreme Court of Ohio requires thorough explanation of senior housing complexes’ tax values

The Ohio Board of Tax Appeals (BTA) failed to indicate that it considered the local school district’s criticism of tax valuations for two Grove City senior housing complexes, and the board must explain its decision in more detail, the Ohio Supreme Court ruled recently.

More flexibility sought in Ohio's bail system

A special committee of the Ohio Criminal Sentencing Commission presented its recommendations to reform Ohio bail and pretrial services at the commission's quarterly meeting on Thursday, March 16th.