[Cite as Barrow v. Living Word Dayton , 2021-Ohio-141.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

SAMUEL BARROW Plaintiff-Appellant

v. LIVING WORD DAYTON, et al. Defendants-Appellees : : : : : : : : : : Appellate Case No. 28719

Trial Court Case No. 2017-CV-2301 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 22nd day of January, 2021.

. . . . . . . . . . . JOHN R. FOLKERTH, Atty. Reg. No. 0016366, 3033 Kettering Boulev ard, Point West II, Suite 111, Dayton, Ohio 45439 Attorney for Plaintiff-Appellant BRYAN J. MAHONEY, Atty. Reg. No. 0071367 and LISA A. HESSE, Att y. Reg. No. 0042120, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 an d J. STEVEN JUSTICE, Atty. Reg. No. 0063719, 210 W. Main Street, Troy 45373 Attorneys for Defendants-Appellees

. . . . . . . . . . . . . HALL, J.-2-

{¶ 1} Samuel Barrow appeals from an order of the Montgomery County Co urt of Common Pleas that requires him and his attorney, jointly and se verally, to pay attorney fees to the defendants as a discovery sanction. We affirm. I. Factual and Procedural Background {¶ 2} In May 2017, Barrow, an alleged author and former member of The Living Word-Dayton church, filed this lawsuit against Living Word, M. Patrick Murray, and Jackie Murray alleging numerous claims, including tortious interferenc e with a business relationship, defamation, invasion of privacy, intentional infl iction of emotional distress, and civil conspiracy. We will refer to the defendants collectiv ely as “Living Word.” The factual allegations underlying Barrow’s claims are not relevant to this appeal. Suffice it to say that Living Word denies all of Barrow’s claims. {¶ 3} This appeal is about a discovery dispute, which began in Decemb er 2017 when Living Word filed a motion to compel Barrow to produce ema ils in their “native electronic format.” Barrow had identified in his discovery resp onses 68 witnesses as having information relevant to his claims and also acknowledged having multiple email accounts. Living Word proposed that Barrow provide his email ac counts and passwords to its expert, Binary Intelligenc e, which would download all of his emails and then search

them for the names of the witnesses that Barrow had identified. The responsive emails

would then be reviewed for relevance and the likelihood of lead ing to the discovery of admissible evidence. The trial court granted Living Word’s moti on to compel and ordered production of the emails following Living Word’s proposed proce dure. Barrow appealed, and we reversed the order and remanded, concluding that the tri al court’s order was-3- overbroad and provided no procedures to identify emails that ma y be covered by the attorney-client privilege and to protect them against productio n. See Barrow v. The Living Word-Dayton , 2d Dist. Montgomery No. 27935, 2018-Ohio-4641. {¶ 4} On remand, the parties came to an agreement on a production met hod that would protect emails that may be covered by the attorney-client privilege. On December 14, 2018, the trial court entered the agreed discovery order (“ Stipulated Confidentiality

and Protective Order and Protocol for Production of Plaintiff B arrow’s Emails”). Under the order, Binary Intelligence, at Liv ing Word’s expense, would sea rch all of Barrow’s emails in two stages. The first stage involved a search for the names of the attorneys on a list provided by Barrow. The responsive emails would be given to Bar row’s counsel who would review them for privilege. The emails deemed privileged w ould be listed in a privilege log, along with certain information specified in the discovery order. The nonprivileged emails would be produced. After the potentially priv ileged emails were culled, Binary Intelligence would then search all the remaining emails a second time for any of the terms on a list provided by Living Word. The list was based on Barrow’s discovery responses and mostly included the names of the 68 people whom h e had identified as having information relevant to his claims. Living Word provided the list of terms to Barrow’s counsel, who noted no objection. {¶ 5} Living Word had no idea how many emails were in Barrow’s email accounts or how many emails would be responsive to the searches. The fir st search, for the attorney names, produced around 3,200 emails, about 2,700 of wh ich Barrow’s counsel identified as privileged. The second search, for Living Word’s list of terms, produced over 50,000 emails. The day after Barrow’s counsel received these em ails from Binary-4- Intelligence, he emailed Living W ord’s counsel that the search terms produced too many

emails and that the terms needed to be refined to reduce the vo lume. Counsel for Living Word responded the same day and suggested that Barrow could ame nded his discovery responses to reduce the number of names and therefore the numbe r of search terms. Over two weeks later, Barrow’s counsel emailed counsel for Livi ng Word refusing to amend the discovery responses and insisting that Living Word re fine the search terms to search for only “material” (rather than relevant) discoverable information. Barrow’s counsel also told Living Word that Barrow refused to review any emails created before 2013, asserting that they could not possibly be relevant. Livin g Word suggested various alternatives to deal with the volume of emails, such as extensi ons of time to conduct the review and producing emails on a rolling basis, i.e., in batche s with set deadlines for production. Living Word also suggested that Barrow could turn o ver the emails for it to review with a claw-back provision should any inadvertent disclo sures occur. Barrow’s counsel did not respond to any of these suggestions. {¶ 6} Finally, on March 29, 2019, Living Word filed a motion for sanc tions. It claimed that Barrow (1) refused to provide a sufficiently detai led privilege log as the order required for claimed attorney-client-privileged emails; (2) ref used to provide any emails created before 2013; (3) refused to review the emails responsiv e to the second search; (4) refused to produce any the second-search emails; and (5) fa iled to respond to reasonable alternatives suggested by Living Word to informally resolve the dispute. A hearing was held in May 2019. Barrow admitted that he had not r eviewed any of the 50,000 emails. He said that he had glanced at the list and conc luded that it was overwhelming. He repeatedly asserted that the search was not a real search: “I don’t think-5- they really did a search.” (Tr. 58.) Barrow said that “the sear ch terms have been constructed in a way so as to not actually constitute a legitim ate basis for search.” ( Id . at 42.) Further, he stated, “I’ve been more than willing to comply if it was a real search.” ( Id

. at 59.) With respect to pre-2013 emails in particular, Barrow w as asked why he refused to review them. He responded, “I did not even * * * know the de fendant during that time and it wasn’t relevant to this particular action at all.” ( Id . at 55.) Living Word explained to the trial court that pre-2013 emails could be relevant for two reasons: one, it had asserted a counterclaim for vexatious litigation that spanned a period o f 20 years; and two, Barrow was allegedly developing his skill as a “world class author,” w as involved with the Living Word church, and was communicating with the witnesses identifie d in his discovery responses as early as 2010. {¶ 7} On June 19, 2019, the trial court sustained Living Word’s motio n for sanctions. The court found Barrow, individually, 1 in contempt for willfully failing to comply with the December 2018 agreed discovery order. Further, the cou rt determined that the failure to comply “was not substantially justified and an award of attorney fees is just.” The following August, a hearing was held on the amount of the a ttorney fees. On January 27, 2020, the trial court ordered Barrow and his counsel, joint ly and severally, to pay Living Word attorney fees of $11,835. {¶ 8} Barrow appeals. II. Analysis

1 “This Court finds that Plaintiff Mr. Barrow has willfully fai led to comply with the Court’s Order of December 14, 2018. * * * This Court concludes that Pla intiff’s failure to abide by the December 14, 2018 Order to which he agreed is in fact conte mptable.” Decision, Entry and Order, June 19, 2019.-6- {¶ 9} Barrow raises three assignments of error, which challenge the f inding that he failed to comply with the discovery order, the finding of conte mpt and awarding of sanctions, and the award of attorney fees. {¶ 10} “Our review of a trial court’s order granting sanctions for fai ling to comply with the discovery rules is based on an abuse-of-discretion sta ndard. A trial court has broad discretion to fashion an appropriate sanction for a party ’s failure to comply with the discovery rules.” Yellowbook, Inc. v. L. Patrick Mulligan & Assocs. , 2d Dist. Montgomery No. 26090, 2014-Ohio-4698, ¶ 7, citing Nakoff v. Grandview Gen. Hosp.l, 75 Ohio St.3d 254, 662 N.E.2d 1 (1996), syllabus. “This is a ‘highly deferent ial standard of review,’ and ‘we will not lightly substitute our interpretation for that of the issuing court.’ ” Barton v.

Barton , 2017-Ohio-980, 86 N.E.3d 937, ¶ 98 (2d Dist.), citing State ex rel. Cincinnati Enquirer v. Hunter , 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d 179, ¶ 29. A. Failure to obey the discovery order {¶ 11} The first assignment of error alleges:

THE TRIAL COURT ERRED BY FINDING THAT MR. BARROW FAILED

TO COMPLY WITH THE COURT’S PROTECTIVE ORDER. {¶ 12} The record shows that the trial court had good reason to find t hat Barrow failed to obey the discovery order. The scope of the discovery order encompassed all

emails that contained at least one of the search terms on the l ist supplied by Living Word. Barrow admitted that he had refused to review any emails create d before 2013. He further admitted that he had refused to review any of the search-term e mails. {¶ 13} Barrow plainly failed to comply with the court’s discovery orde r. The order did not give Barrow discretion as to which emails to review. If he thought that compliance-7- would be an undue burden or expense, he should have brought tha t to the trial court’s attention. Instead, Barrow simply disregarded what the order re quired him do. {¶ 14} The first assignment of error is overruled. B. Contempt and sanctions {¶ 15} The second assignment of error alleges:

THE TRIAL COURT ERRED BY AWARDING SANCTIONS AGAINST MR.

BARROW AND HIS COUNSEL. {¶ 16} Civ.R. 37(B)(1)(g) states that, if a party fails to obey a disc overy order, the court may issue an order treating the failure to obey as contem pt of court. And Civ.R. 37(B)(3) requires the court to order payment of attorney fees “ unless the failure was substantially justified or other circumstances make an award of expenses unjust.” See Action Group, Inc. v. NanoStatics Corp. , 10th Dist. Franklin No. 13AP-72, 2013-Ohio5542, ¶ 68 (stating that “a court is generally required to orde r the party who fails to obey a discovery order to pay the opposing party’s reasonable expens es, including attorney fees,” the only exceptions being “if the court finds that the u ncooperative party’s actions are substantially justified or other circumstances make the awa rd unjust”). Absent one of these exceptions, “[w]hen noncompliance with the discovery rule s is established, a court abuses its discretion when it fails to award attorney fees.” Yellowbook , 2d Dist. Montgomery No. 26090, 2014-Ohio-4698, at ¶ 8, citing Mays v. Dunaway, 2d Dist. Montgomery No. 19922, 2003-Ohio-6900. {¶ 17} Here, in its June 19, 2019 decision, the trial court found that Barrow had “willfully failed to comply” with the discovery order and that the failure to comply with the order to which Barrow had agreed was “contemptable.” The trial court further found that-8- the failure to comply was not substantially justified and that an award of attorney fees was just. {¶ 18} The record amply supports these findings. Living Word first sou ght Barrow’s discoverable emails in 2017. Finally, a year later, the parties agreed to a discovery procedure for them. Barrow knew how many emails he had; Living Word had no idea.

When Barrow lear ned how much work would be required, he simply refused to follow the procedure—the procedure he had agreed to. But he did not say an ything to the trial court about it until Living Word filed its motion for sanctions, whic h was over a year after Living Word had first sought the emails. Barrow did not object to Livi ng Word’s list of search terms. And when he learned just how many emails he would have t o review, he did not ask the court to modify the discovery order. Moreover, Barrow d id not respond to Living Word’s suggestions of alternative ways to comply or offer his o wn suggestions. {¶ 19} The discovery order did not give Barrow the option to review on ly a portion of his emails. “[I]n disobeying a court order, he took the risk that the court would disagree

with his choice.” Passage v. Passage , 2d Dist. Greene No. 2013-DR-190, 2016-Ohio1097, ¶ 21. As we have already said, if Barrow thought that com pliance would be an undue burden or expense, and that Living Word’s suggested alter natives were unworkable, he should have brought the matter to the trial cour t. “What he could not do was to unilaterally disregard the prior court order.” Id. at ¶ 23. {¶ 20} As for the trial court’s decision to make Barrow’s counsel join tly and severally liable for attorney fees, despite the fact that the c ontempt finding did not extend to Barrow’s attorney, Civ.R. 37(B)(3) gives courts the authorit y to sanction an attorney for a failure to comply with a discovery order. It states: “Payment of Expenses. Instead of or-9- in addition to the orders above, the court shall order the diso bedient party, the attorney advising that party, or both to pay the reasonable expenses, in cluding attorney's fees, caused by the failure, unless the failure was substantially jus tified or other circumstances make an award of expenses unjust.” As the Tenth District has sa id, “Civ.R. 37 vests courts with the authority to sanction parties and their attorneys for flouting the Rules of Civil Procedure and violating discovery orders, and * * * joint and s everal liability is one method by which a court may impose sanctions.” Bellamy v. Montgomery , 188 Ohio App.3d 76, 2010-Ohio-2724, 934 N.E.2d 403, ¶ 21 (10th Dist.). Here, the tr ial court noted in its January 27, 2020 decision that it had found Barrow in contempt for failing to comply with the discovery order. In addition, the court pointed out that Ba rrow’s counsel “continues to fuel the fire by arguing in his post hearing brief that ‘The tr ansparent motive of the Living Word Defendants to conduct this quest for sanctions is to maneu ver Mr. Barrow into sanctions, with the ultimate objective of obtaining the dismiss al of Mr. Barrow’s lawsuit

other than on the merits.’ ” The court also noted that counsel called Living Word’s conduct “ ‘tactics’ that are ‘disingenuous and a pretext to seek sancti ons.’ ” The court found it “especially egregious” that counsel still blamed Living Word fo r Barrow’s conduct, which the court had already found was contemptable. While the court e xpressed reluctance to impose joint and several liability on counsel, it said that “Ba rrow’s statements are in fact fueled by his counsel’s continued effort to blame Defendants fo r Plaintiffs failure to abide by a Court Order.” {¶ 21} We cannot say that the trial court abused its discretion by imp osing sanctions jointly and severally on both Barrow and his counsel. {¶ 22} The second assignment of error is overruled.-10- C. Award of attorney fees {¶ 23} The third assignment of error alleges:

THE TRIAL COURT’S AWARD OF SANCTIONS IS UNJUST AND

EXCESSIVE. {¶ 24} “The trial court must determine, as a factual finding, an amoun t that will reasonably compensate the moving party for its reasonable expen ses in pursuing a justifiable order of sanctions.” Yellowbook, 2d Dist. Montgomery No. 26090, 2014-Ohio4698, ¶ 10, citing Bellamy, 188 Ohio App.3d 76, 2010-Ohio-2724, 934 N.E.2d. 403. {¶ 25} Here, the trial court awarded Living Word $11,835 in attorney f ees “based upon the evidence presented.” At the hearing on attorney fees, Living Word presented expert testimony and exhibits supporting the reasonableness of the fees a warded. Upon review, we conclude that the amount of the award is well-suppor ted by the evidence and

was not an abuse of discretion. See Barton , 2017-Ohio-980, 86 N.E.3d 937, at ¶ 99 (concluding that the contempt finding and award of reasonable f ees were well-supported by the evidence and were not an abuse of discretion where exper t testimony as the reasonableness of the fees incurred was presented). {¶ 26} The third assignment of error is overruled.

III. Conclusion {¶ 27} We have overruled each of the assignments of error presented. T he trial court’s judgment is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J., concurs.-11-

FROELICH, J., concurs in part and dissents in part: {¶ 28} I concur in the affirmance of the finding of contempt against B arrow and the award and amount of attorney fees. I disagree with the trial c ourt’s judgment of joint and several liability concerning his attorney. {¶ 29} “Civ.R. 37 vests courts with the authority to sanction parties and their attorneys for flouting the Rules of Civil Procedure and violati ng discovery orders[;] * * * joint and several liability is one method by which a court may impose sanctions.” Bellamy , 188 Ohio App.3d 76, 2010-Ohio-2724, 934 N.E.2d 403, ¶ 21 [ Bellamy I ]. {¶ 30} In Bellamy I , the Tenth District reviewed the imposition of sanctions again st a law firm, pursuant to Civ.R. 37. Recognizing “how attorney-c lient relationships may sometimes break down,” the Tenth District has stated that “ ‘[i ]t is fair to hold individuals accountable for their own conduct. A lawyer cannot always cont rol the actions of a client, and it would be unfair to hold the lawyer accountable for them, unless it appeared that he or she had some responsibility for the client’s recalcitrance.’ ” Id ., quoting Inter-Trade, Inc. v. CNPQ-Conselho Nacional De Desenvolvimento Cientifico E Tecnologic o, 761 A.2d 834, 839 (D.C.2000). The Tenth District continued: Keeping all practical, legal, and public-policy considerations in mind, the fact patterns of the federal cases that have imposed joint and several liability for sanctions have g enerally involved egregious condu ct by attorneys. The imposition of joint and several liability can t ranslate to being a harsh sanction but, if warranted, a wholly appropriate sancti on. Thus, given the fact patterns reviewed by this court, it is our posit ion that a trial-12- court must support the imposition of joint and several liabilit y with detailed findings and analysis, which includes an apportionment of respo nsibility.

Id. at ¶ 22. The appellate court reversed the award of sanctions a nd remanded the case to the trial court for more complete findings as to the law fir m’s level of responsibility, if any, for the failure to produce the requested documents. After a hearing, the trial court assigned 25 percent of the responsibility to the law firm. {¶ 31} Reviewing the law firm’s appeal of the trial court’s decision a fter remand, the Tenth District again reversed the award of sanctions agains t the law firm. It

reasoned:

In Inter-Trade, which this court relied upon in Bellamy I, the District of Columbia Court of Appeals reversed an award of sanctions aga inst an attorney that was based upon the client’s failure to attend a d eposition. The court held that the client’s failure, in and of itself, did not give rise to sanctions against the attorney. Rather, the court held that at torneys should be held accountable only for their own conduct. The court agre ed that “ ‘ “an award ought to be made against the attorney only when i t is clear that discovery was unjustifiably opposed principally at his instigat ion.” ’ ” InterTrade at 840, quoting Crawford v. Am. Fedn. Of Govt. Emps., 576 F.Supp. 812, 815 (D.D.C.1983), quoting Humphreys Exterminating Co., Inc. v. Poulter, 62 F.R.D. 392 (D.Md.1974). * * * In Inter-Trade, the district court

was not entitled to sanction counsel because it did not know wh ether the client had consulted with counsel in forming his position regar ding attendance at his deposition.-13- “Rule 37 treats the client and his attorney separately.” Weisberg [v.

Webster , 749 F.2d [864,] 874 [(D.C.Cir.1984)]. “[A]n award of costs u nder Rule 37 against an attorney ought to be justified by reasons di stinct from those justifying an award against the client.” Id., citing Crawford. Accordingly, neither a party’s failure to comply with a discove ry order nor the trial court’s reasoning for imposing sanctions upon the par ty is sufficient to justify sanctions against the party’s attorney. Rather, sep arate and distinct reasons must support sanctions against the attorney, a nd the court must explain those reasons. In Weisberg at 874, the D.C. Circuit explained that “[t]his requirement of findings to support an award of exp enses against an attorney is prompted by the structure of Rule 37, by concern s for effective appellate review, and by concerns for the tension cre ated in the attorney-client relationship when the attorney is subject to pe rsonal liability.” Addressing language in R.C. 2323.51 that is substantially simi lar to the language in Civ.R. 37(B)(2), this court has stated that, “i n allowing for the imposition of sanctions against the client, counsel, or bot h, [R.C. 2323.51] provides a mechanism for the court to place the blame directly

where the fault lies.” Estep v. Kasparian, 79 Ohio App.3d 313, 317, 607 N.E.2d 109 (10th Dist.1992). The same reasoning applies to san ctions under Civ.R. 37(B)(2) and is consistent with the federal case l aw requiring highly culpable conduct by an attorney before a court may requi re the attorney to pay expenses. Therefore, we agree with Cooper & El liott that a client’s failure to comply with discovery orders is not, by i tself, an-14- appropriate basis for ordering the attorney to pay expenses pur suant to Civ.R. 37(B)(2). Bellamy v. Montgomery , 10th Dist. Franklin No. 11AP-1059, 2012-Ohio-4304, ¶ 12-14 ( Bellamy II ). The Tenth District concluded that the trial court applied t he wrong legal

standard when it awarded sanctions based on the firm’s failure to ensure its client’s compliance with the discovery order. Id . at ¶ 10. Applying the correct legal standard, the Tenth District found “no support for a finding that Cooper & Elliott engaged in highly culpable conduct that amounted to condonance of or participatio n in Bellamy's noncompliance with the trial court's discovery orders.” Id . at ¶ 30. {¶ 32} In this case, counsel was never put on notice, either in the mo tion for sanctions or at the hearing, that the trial court was consideri ng sanctions against him personally. Contrast Bellamy I , 188 Ohio App.3d 76, 2010-Ohio-2724, 934 N.E.2d 403, at ¶ 6 (the trial court ordered an evidentiary hearing on the a mount of expenses and “level of responsibility for them of Plaintiff and his counsel”). Mor eover, the trial court found from the evidence that it was Barrow who had willfully failed t o comply and that Barrow had refused to provide a log, refused to provide any pre-2013 e mails, refused to review certain emails, refused to produce certain emails, and failed t o respond to informal alternatives suggested by Living Word. There was no testimony that any of this was done at the attorney’s direction or suggestion, as opposed to p erhaps acting against his attorney’s advice. {¶ 33} Courts must also be mindful of the chilling effect that applyin g a sanction – even if permitted by a Rule – can have on forceful and diligent advocacy. See Internatl. Union of Operating Engineers, Local 18 v. Laborers' Internatl. Union of N. America, Local-15-

31 0, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 25 (address ing a motion for attorney fees under Civ.R. 11.) {¶ 34} I find nothing in the record to support a determination of “hig hly culpable conduct by the attorney that amounted to condonance or particip ation in a client’s disobedience of a discovery order.” See Bellamy II at ¶ 30. I would remand for the court to hear additional evidence and apply the correct legal standar d concerning the attorney.

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John R. Folkerth Bryan J. Mahoney Lisa A. Hesse J. Steven Justice Kevin A. Bowman Hon. Richard Skelton