[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 

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Appellate Case No. 28719 

Trial Court Case No. 2017-CV-2301 

(Civil Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 22nd day of January, 2021. 

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JOHN R. FOLKERTH, Atty. Reg. No. 0016366, 3033 Kettering Boulevard, Point West II, 

Suite 111, Dayton, Ohio 45439 

 Attorney for Plaintiff-Appellant 

 

BRYAN J. MAHONEY, Atty. Reg. No. 0071367 and LISA A. HESSE, Atty. Reg. No. 

0042120, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 and J. STEVEN 

JUSTICE, Atty. Reg. No. 0063719, 210 W. Main Street, Troy 45373

 Attorneys for Defendants-Appellees 

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HALL, J. 
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{¶ 1} Samuel Barrow appeals from an order of the Montgomery County Court of 

Common Pleas that requires him and his attorney, jointly and severally, 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 interference with a business 

relationship, defamation, invasion of privacy, intentional infliction of emotional distress, 

and civil conspiracy. We will refer to the defendants collectively 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 December 2017 

when Living Word filed a motion to compel Barrow to produce emails in their “native 

electronic format.” Barrow had identified in his discovery responses 68 witnesses as 

having information relevant to his claims and also acknowledged having multiple email 

accounts. Living Word proposed that Barrow provide his email accounts and passwords 

to its expert, Binary Intelligence, 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 leading to the discovery of 

admissible evidence. The trial court granted Living Word’s motion to compel and ordered 

production of the emails following Living Word’s proposed procedure. Barrow appealed, 

and we reversed the order and remanded, concluding that the trial court’s order was 
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overbroad and provided no procedures to identify emails that may be covered by the 

attorney-client privilege and to protect them against production. 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 method 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 Barrow’s Emails”). Under the 

order, Binary Intelligence, at Living Word’s expense, would search 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 Barrow’s counsel who 

would review them for privilege. The emails deemed privileged would be listed in a 

privilege log, along with certain information specified in the discovery order. The nonprivileged emails would be produced. After the potentially privileged 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 he 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 first search, for the 

attorney names, produced around 3,200 emails, about 2,700 of which 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 emails from Binary 
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Intelligence, he emailed Living Word’s counsel that the search terms produced too many 

emails and that the terms needed to be refined to reduce the volume. Counsel for Living 

Word responded the same day and suggested that Barrow could amended his discovery 

responses to reduce the number of names and therefore the number of search terms. 

Over two weeks later, Barrow’s counsel emailed counsel for Living Word refusing to 

amend the discovery responses and insisting that Living Word refine 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. Living Word suggested various 

alternatives to deal with the volume of emails, such as extensions of time to conduct the 

review and producing emails on a rolling basis, i.e., in batches with set deadlines for 

production. Living Word also suggested that Barrow could turn over the emails for it to 

review with a claw-back provision should any inadvertent disclosures occur. Barrow’s 

counsel did not respond to any of these suggestions. 

{¶ 6} Finally, on March 29, 2019, Living Word filed a motion for sanctions. It 

claimed that Barrow (1) refused to provide a sufficiently detailed privilege log as the order 

required for claimed attorney-client-privileged emails; (2) refused to provide any emails 

created before 2013; (3) refused to review the emails responsive to the second search; 

(4) refused to produce any the second-search emails; and (5) failed 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 reviewed any of the 

50,000 emails. He said that he had glanced at the list and concluded that it was 

overwhelming. He repeatedly asserted that the search was not a real search: “I don’t think 
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they really did a search.” (Tr. 58.) Barrow said that “the search terms have been 

constructed in a way so as to not actually constitute a legitimate 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 was asked why he refused 

to review them. He responded, “I did not even * * * know the defendant 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 of 20 years; and two, Barrow 

was allegedly developing his skill as a “world class author,” was involved with the Living 

Word church, and was communicating with the witnesses identified in his discovery 

responses as early as 2010. 

{¶ 7} On June 19, 2019, the trial court sustained Living Word’s motion for 

sanctions. The court found Barrow, individually,1 in contempt for willfully failing to comply 

with the December 2018 agreed discovery order. Further, the court 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 attorney fees. On January 

27, 2020, the trial court ordered Barrow and his counsel, jointly 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 failed to comply with the Court’s 

Order of December 14, 2018. * * * This Court concludes that Plaintiff’s failure to abide by 

the December 14, 2018 Order to which he agreed is in fact contemptable.” Decision, Entry 

and Order, June 19, 2019. 
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{¶ 9} Barrow raises three assignments of error, which challenge the finding that he 

failed to comply with the discovery order, the finding of contempt and awarding of 

sanctions, and the award of attorney fees.

{¶ 10} “Our review of a trial court’s order granting sanctions for failing to comply 

with the discovery rules is based on an abuse-of-discretion standard. 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 deferential 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 that 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 list supplied by Living Word. 

Barrow admitted that he had refused to review any emails created before 2013. He further 

admitted that he had refused to review any of the search-term emails. 

{¶ 13} Barrow plainly failed to comply with the court’s discovery order. The order 

did not give Barrow discretion as to which emails to review. If he thought that compliance 
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would be an undue burden or expense, he should have brought that to the trial court’s 

attention. Instead, Barrow simply disregarded what the order required 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 discovery order, the 

court may issue an order treating the failure to obey as contempt 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 order the party who fails to obey 

a discovery order to pay the opposing party’s reasonable expenses, including attorney 

fees,” the only exceptions being “if the court finds that the uncooperative party’s actions 

are substantially justified or other circumstances make the award unjust”). Absent one of 

these exceptions, “[w]hen noncompliance with the discovery rules 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 
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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 sought 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 learned how much work would be required, he simply refused to follow the 

procedure—the procedure he had agreed to. But he did not say anything to the trial court 

about it until Living Word filed its motion for sanctions, which was over a year after Living 

Word had first sought the emails. Barrow did not object to Living Word’s list of search 

terms. And when he learned just how many emails he would have to review, he did not 

ask the court to modify the discovery order. Moreover, Barrow did not respond to Living 

Word’s suggestions of alternative ways to comply or offer his own suggestions. 

{¶ 19} The discovery order did not give Barrow the option to review only 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 compliance would be an 

undue burden or expense, and that Living Word’s suggested alternatives were 

unworkable, he should have brought the matter to the trial court. “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 jointly and 

severally liable for attorney fees, despite the fact that the contempt finding did not extend 

to Barrow’s attorney, Civ.R. 37(B)(3) gives courts the authority to sanction an attorney for 

a failure to comply with a discovery order. It states: “Payment of Expenses. Instead of or 
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in addition to the orders above, the court shall order the disobedient party, the attorney 

advising that party, or both to pay the reasonable expenses, including attorney's fees, 

caused by the failure, unless the failure was substantially justified or other circumstances 

make an award of expenses unjust.” As the Tenth District has said, “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 several 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 trial 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 Barrow’s counsel “continues to 

fuel the fire by arguing in his post hearing brief that ‘The transparent motive of the Living 

Word Defendants to conduct this quest for sanctions is to maneuver Mr. Barrow into 

sanctions, with the ultimate objective of obtaining the dismissal 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 sanctions.’ ” The court found it 

“especially egregious” that counsel still blamed Living Word for Barrow’s conduct, which 

the court had already found was contemptable. While the court expressed reluctance to 

impose joint and several liability on counsel, it said that “Barrow’s statements are in fact 

fueled by his counsel’s continued effort to blame Defendants for Plaintiffs failure to abide 

by a Court Order.” 

{¶ 21} We cannot say that the trial court abused its discretion by imposing 

sanctions jointly and severally on both Barrow and his counsel. 

{¶ 22} The second assignment of error is overruled. 
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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 amount that will 

reasonably compensate the moving party for its reasonable expenses 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 fees “based 

upon the evidence presented.” At the hearing on attorney fees, Living Word presented 

expert testimony and exhibits supporting the reasonableness of the fees awarded. Upon 

review, we conclude that the amount of the award is well-supported 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 fees were well-supported 

by the evidence and were not an abuse of discretion where expert 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. The trial 

court’s judgment is affirmed. 

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TUCKER, P.J., concurs. 
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FROELICH, J., concurs in part and dissents in part: 

{¶ 28} I concur in the affirmance of the finding of contempt against Barrow and the 

award and amount of attorney fees. I disagree with the trial court’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 violating 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 against 

a law firm, pursuant to Civ.R. 37. Recognizing “how attorney-client 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 control 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 Tecnologico, 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 generally involved egregious conduct by 

attorneys. The imposition of joint and several liability can translate to being 

a harsh sanction but, if warranted, a wholly appropriate sanction. Thus, 

given the fact patterns reviewed by this court, it is our position that a trial 
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court must support the imposition of joint and several liability with detailed 

findings and analysis, which includes an apportionment of responsibility. 

Id. at ¶ 22. The appellate court reversed the award of sanctions and remanded the case 

to the trial court for more complete findings as to the law firm’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 after remand, 

the Tenth District again reversed the award of sanctions against 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 against an 

attorney that was based upon the client’s failure to attend a deposition. 

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 attorneys should 

be held accountable only for their own conduct. The court agreed that 

“ ‘ “an award ought to be made against the attorney only when it is clear that 

discovery was unjustifiably opposed principally at his instigation.” ’ ” 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 whether the 

client had consulted with counsel in forming his position regarding 

attendance at his deposition. 
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“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 under 

Rule 37 against an attorney ought to be justified by reasons distinct from 

those justifying an award against the client.” Id., citing Crawford. 

Accordingly, neither a party’s failure to comply with a discovery order nor 

the trial court’s reasoning for imposing sanctions upon the party is sufficient 

to justify sanctions against the party’s attorney. Rather, separate and 

distinct reasons must support sanctions against the attorney, and 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 expenses against 

an attorney is prompted by the structure of Rule 37, by concerns for 

effective appellate review, and by concerns for the tension created in the 

attorney-client relationship when the attorney is subject to personal liability.” 

 Addressing language in R.C. 2323.51 that is substantially similar to 

the language in Civ.R. 37(B)(2), this court has stated that, “in allowing for 

the imposition of sanctions against the client, counsel, or both, [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 sanctions 

under Civ.R. 37(B)(2) and is consistent with the federal case law requiring 

highly culpable conduct by an attorney before a court may require the 

attorney to pay expenses. Therefore, we agree with Cooper & Elliott that 

a client’s failure to comply with discovery orders is not, by itself, an 
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appropriate basis for ordering the attorney to pay expenses pursuant 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 the 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 participation 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 motion for 

sanctions or at the hearing, that the trial court was considering 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 amount of expenses and “level 

of responsibility for them of Plaintiff and his counsel”). Moreover, the trial court found 

from the evidence that it was Barrow who had willfully failed to comply and that Barrow 

had refused to provide a log, refused to provide any pre-2013 emails, refused to review 

certain emails, refused to produce certain emails, and failed to 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 perhaps acting against his 

attorney’s advice. 

{¶ 33} Courts must also be mindful of the chilling effect that applying 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 
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310, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 25 (addressing a motion for 

attorney fees under Civ.R. 11.) 

{¶ 34} I find nothing in the record to support a determination of “highly culpable 

conduct by the attorney that amounted to condonance or participation 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 standard concerning the attorney. 

Copies sent to: 

John R. Folkerth 

Bryan J. Mahoney 

Lisa A. Hesse 

J. Steven Justice 

Kevin A. Bowman 

Hon. Richard Skelton