UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

OMAR ALOMARI,

Plaintiff,

Civil Action 2:11-cv-00613

v. Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

OHIO DEPARTMENT OF 

PUBLIC SAFETY, et al., 

Defendants.

DISCOVERY OPINION AND ORDER

This matter is before the Court for consideration of Plaintiff’s Motion to Compel

Discovery. (ECF No. 33.) Defendants filed their Response in Opposition to Plaintiff’s Motion

on August 2, 2013. (ECF No. 34.) Pursuant to this Court’s July 26, 2013 Order, Plaintiff was

prohibited from filing a Reply brief. For the reasons that follow, with respect to one of the three

issues Plaintiff raises, Plaintiff’s Motion is DENIED. The Court defers ruling on the two

remaining issues until the parties submit additional materials, as set forth herein. 

I.

Plaintiff is a former employee of the Ohio Homeland Security (“OHS”), a division of the

Ohio Department of Public Safety (“ODPS”). He alleges that ODPS terminated him in June

2010 because of his race, national origin, ethnicity, and religion, and in retaliation for opposing

anti-Muslim and anti-Arab counterterrorism training. (Compl. ¶ 1, ECF No. 2.) 

Plaintiff, an Arab and Muslim, immigrated to this country in 1978. In 2005, Defendants

hired him to serve as a liaison between OHS and the Muslim communities and to build

relationships between OHS, law enforcement and the local Arab and Muslim population. 

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According to the Complaint, Plaintiff also researched and authored publications on Arab and

Muslim communities and presented educational information to law enforcement on behalf of

OHS concerning cultural issues.

Plaintiff alleges that in November 2008, OHS held a training session for its terrorismliaison officers. Id. at ¶ 18. Concerned about the way in which the training characterized Arabs

and Muslims, Plaintiff informed the Director of OHS that the purported anti-Muslim and antiArab contents of the training session undermined OHS’ efforts to build and maintain

relationships with the Arab and Muslim communities. Plaintiff contends that OHS held similar

anti-Muslim and anti-Arab training session throughout 2009. He alleges that he continued to

voice concern to the Director of OHS regarding the purported mischaracterization of all Central

Ohio Muslims and Arabs as terrorists or terrorism-sympathizers. Id. at ¶ 22. Plaintiff represents

that his photograph was shown during one of the training session as an example of a terrorismsympathizer. In addition to expressing concern to the Director of OHS, Plaintiff alleges that he

contacted the Office of Civil Rights and Civil Liberties and the United States Department of

Homeland Security to report the inaccuracies the training sessions portrayed. According to

Plaintiff, Defendants ultimately terminated him on pretext but that the true reason was retaliation

for his complaints, and because of unfounded media and other inquiries suggesting that Plaintiff

might be a terrorism-sympathizer. 

Defendants assert that ODPS terminated Plaintiff because he intentionally withheld from

his employment application a position he held at Columbus State Community College

(“Columbus State”). Plaintiff’s employment at Columbus State allegedly ended following an

inappropriate relationship he shared with a female student. The parties indicate that in 2010

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various media outlets began to inquire of OHS and ODPS concerning Plaintiff’s departure from

Columbus State and his failure to list the position on his employment application. In April 2010,

ODPS prompted an administrative investigation into the circumstances surrounding Plaintiff’s

departure from Columbus State and his failure to disclose the position on his employment

application. The investigator, Kathleen Bourke-Botos, ultimately concluded that Plaintiff failed

to provide accurate information on his employment application. Defendants contend that they

relied on the results of the investigation in deciding to terminate Plaintiff. 

In the instant Motion, Plaintiff seeks an Order compelling testimony related to two

meetings leading up to his termination that were held with ODPS’ in-house counsel. He also

seeks to depose ODPS’ in-house counsel concerning their role in providing materials to the

administrative investigator. He asserts that this information will prove that Defendants’ stated

reason for terminating him is a pretext for discrimination and retaliation. Defendants oppose

Plaintiff’s requests, primarily on the grounds of attorney-client privilege. 

II.

A. Standard for Attorney-Client Privilege

The attorney-client privilege is recognized as the oldest privilege relating to confidential

communications. Upjohn v. United States, 449 U.S. 383, 389 (1981). Its purpose is to

“encourage full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and administration of justice. Id. In

Upjohn, the United States Supreme Court explored the contours of the attorney-client privilege

as it relates to corporate employees. 449 U.S. at 386-97. In rejecting the “control group test,”

the Supreme Court emphasized that “the privilege exists to protect not only the giving of legal

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advice to those who can act on it but also the giving of information to the lawyer to enable him

[or her] to give sound and informed advice.” Id. at 390. As the Supreme Court recognized,

“[t]he first step in the resolution of any legal problem is ascertaining the factual background and

sifting through the facts with an eye to the legally relevant.” Id. at 390-91. In light of Upjohn,

“it is now well settled that private corporations and other organizations may constitute clients for

purposes of the attorney-client privilege.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998). 

The Sixth Circuit Court of Appeals articulated the following test to determine whether a

communication is privileged: “(1) where legal advice of any kind is sought (2) from a

professional legal adviser in his [or her] capacity as such, (3) the communications relating to that

purpose, (4) made in confidence (5) by the client, (6) are at his [or her] insistence permanently

protected (7) from disclosure by himself [or herself] or by the legal advisor, (8) unless the

protection is waived.” Reed, 134 F.3d at 355-56 (citing Fausek v. White, 965 F.2d 126, 129 (6th

Cir. 1992)). 

In addition, “the mere fact that in-house counsel is present at a meeting does not shield

otherwise unprivileged communications from disclosure.” Neuder v. Battelle Pac. Nw Nat’l

Lab., 194 F.R.D. 289, 293 (D.D.C. 2000). Rather, the attorney-client privilege “applies only to

communications made to an attorney in his capacity as legal advisor.” Id. at 292. “Where

business and legal advice are intertwined, the legal advice must predominate for the

communication to be protected.” Id. at 292. In determining whether communications made in

counsel’s presence are privileged, courts have considered whether counsel serves dual roles for

the corporation. Naik v. Boehringer-Ingelheim Pharm., Inc., No. 07-c-3500, 2008 WL 4866015,

*2 (N.D. Ill June 19, 2008) (concluding that communications were not privileged, partly because

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“there is no suggestion that BIPI’s in-house counsel was serving on a committee charged with

considering employment issues”).

Furthermore, “[t]he burden of establishing the existence of the privilege rests with the

person asserting it.” United States v. Dakota, 188 F.3d 663, 667 (6th Cir. 1999). Simply

asserting that information is privileged “is insufficient to meet the burden.” In re Trans-Indus.,

No. 1-10 MC 24, 2011 WL 1130410, *4 (N.D. Ohio Mar. 28, 2011). Rule 26 of the Federal

Rules of Civil Procedure requires a party who seeks to withhold otherwise discoverable

information on the basis of privilege to assert a claim of privilege and “describe the nature of the

documents, communications, or tangible things not produced or disclosed – and do so in a

manner that, without revealing information itself privileged or protected, will enable to the other

parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A); see also Cooey v. Strickland, 269

F.R.D. 643, 649 (S.D. Ohio 2010) (citing In re Search Warrant Executed at Law Offices of

Stephen Garea, No. 97-4112, 1999 WL 137499 (6th Cir. Mar. 5, 1999) (“The privilege log must

be detailed enough to prove that the communications in question were in fact confidential

communications relating to legal advice.”). Here, Plaintiff seeks an Order compelling testimony

concerning discussions that occurred at two meetings where ODPS’ counsel was present. 

B. April 2010 Meeting

Plaintiff first seeks to compel testimony concerning communications from an April 2010

meeting at which he was present along with his supervisor and ODPS’ counsel. (Mot. 4, ECF

No. 33.) The purpose of the meeting, according to Plaintiff, was to determine how to respond to

media inquiries related to his departure from Columbus State and his failure to include

Columbus State on his employment application. Plaintiff posits that the attorney-client privilege

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does not protect discussions that occurred during the meeting because its purpose was to discuss

media inquiries, not solicit or render legal advice. Even if the purpose was to solicit or render

legal advice, Plaintiff asserts that the privilege nevertheless fails to attach because he did not

know that the meeting was called for such purpose, as Upjohn requires. 

The Court disagrees. First, as Defendants point out, the record demonstrates that the

purpose of the April 2010 meeting was for counsel to ask Plaintiff questions so that she could

advise ODPS how to respond to the media inquiries. Plaintiff testified that counsel and his

supervisor “really wanted to ask questions and prepare a response to the [media inquiries].” 

(Alomari Dep. 167:3-5, Mot. Ex. 1, ECF No. 33-1.) Plaintiff’s supervisor testified that it was

apparent from the media inquires that “this was enough of an issue that we need to – or he needs

to consult with legal and go from there.” (Vedra Dep. 50:2-4, Op. Ex. 2, ECF No. 34-2.) 

Second, Plaintiff’s testimony indicates that he was sufficiently aware that the purpose of the

meeting was to provide information to counsel for this purpose. He testified that counsel

explained the media inquiries to him, and stated that she wanted to understand the underlying

circumstances to determine how to respond. (Alomari Dep. 166:18-167:5, Mot. Ex. 1, ECF No.

33-1.) Accordingly, Plaintiff’s request to compel testimony related to the April 2010 meeting is

DENIED. 

C. June 2010 Meeting 

Plaintiff next seeks an Order compelling testimony as to discussions from a June 2010

meeting that the then-director of ODPS called apparently to determine how to proceed in light of

the results of the administrative investigation of Plaintiff. In addition to the director, the

Assistant Director of ODPS, a member of human resources, a member of administration,

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Plaintiff’s supervisor, the deputy chief of staff of public safety, and ODPS legal counsel attended

the meeting. (Vedra Dep. 53:15-23, Op. Ex. 2, ECF No. 34-2.) Plaintiff’s supervisor testified

that during the meeting they reached a “consensus or [] decision” to terminate Plaintiff. Id. at

57:19-23. Plaintiff seeks to discover how those in attendance reached the decision to terminate

him, and maintains that the mere presence of counsel is insufficient to trigger the attorney-client

privilege. 

The record contains insufficient information for the Court to determine whether the

attorney-client privilege protects discussions that occurred at the June 2010 meeting. As

discussed above, “the mere fact that in-house counsel is present at a meeting does not shield

otherwise unprivileged communications from disclosure.” Neuder, 194 F.R.D. at 293; see also

Curtis v. Alcoa, Inc., No. 3:06-cv-448, 2009 WL 838232, *2 (E.D. Tenn. March 27, 2009)

(holding communications at meetings attended by attorneys not automatically privileged). 

Rather, the attorney-client privilege “applies only to communications made to an attorney in his

capacity as legal advisor.” Id. at 292. “Where business and legal advice are intertwined, the

legal advice must predominate for the communication to be protected.” Id. at 292. In

determining whether communications made in counsel’s presence are privileged, courts have

considered whether counsel serves dual roles for the corporation. Naik, 2008 WL 4866015 at *2

(concluding that communications were not privileged, partly because “there is no suggestion that

BIPI’s in-house counsel was serving on a committee charged with considering employment

issues”). 

Here, although Plaintiff asserts that the purpose of the meeting was to discuss the results

of the investigation, neither party has supplied evidence of the actual substance of the June 2010

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communications. The Court is thus unable to determine whether the relevant discussions were

made to counsel in her capacity as legal advisor, or whether legal advice predominated among

legal discussions intertwined with business communications. Recognizing that Defendants carry

the burden of demonstrating privilege, and in the interest of justice, Defendants are DIRECTED

to submit for in camera inspection an affidavit setting forth the substance of the June 2010

communications, focusing on the communications and the role of in-house counsel, WITHIN

SEVEN (7) DAYS OF THE DATE OF THIS ORDER. The Court will then determine

whether the privilege applies to the communications. 

III.

Finally, Plaintiff seeks to depose three lawyers who served as in-house counsel for ODPS

at the time of the administrative investigation.1

 According to Plaintiff, the three lawyers in

question acquired documents from Columbus State to provide to the administrative investigator,

Bourke-Botos. Columbus State purportedly provided a hand-written settlement agreement to

counsel reflecting that Plaintiff was permitted to resign from his position. Bourke-Botos,

1

The Court notes that Plaintiff did not present this as an issue during the judicial

conference that led the Court to impose the briefing schedule on the issues discussed above. See

July 22, 2013 Order and July 26, 2013 Order, ECF Nos. 30 and 32 (expediting briefing on the

attorney-client privilege issues set forth above). Nor did Plaintiff otherwise indicate to or

request permission from the Court to include this issue for consideration with the issues

addressed in the prior Orders. Moreover, Plaintiff apparently failed to comport with his duty

under Local Rule 37.1 to consult with opposing counsel prior to filing motions on a discovery

dispute. S.D. Ohio Civ. R. 37.1; see generally Mot., ECF No. 33 (containing no indication that

Plaintiff complied with his obligation under Rule 37.1); Op. 9, ECF No. 34 (indicating that

Plaintiff failed to consult with defense counsel on this issue). Nevertheless, in the interest of

justice and in an effort to avoid penalizing Plaintiff for what appears to be his counsel’s

missteps, the Court will consider Plaintiff’s request to compel the depositions of ODPS’ counsel. 

Counsel are still encouraged to negotiate on the issue and to determine whether Plaintiff may

obtain the information he seeks short of deposing counsel. 

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however, never received that agreement. Relying on other documents that counsel provided,

Bourke-Botos ultimately concluded that Plaintiff lied when he stated that he resigned from

Columbus State. In the instant Motion, Plaintiff seeks to depose ODPS counsel to determine

why they failed to provide the purportedly exculpatory settlement agreement to Bourke-Botos. 

 Plaintiff identifies the “Faragher-Ellerth” affirmative defense in supports of his position. 

(Mot. 16, ECF No. 33.) The Faragher-Ellerth defense permits an employer defending a hostile

work environment claim to assert that it exercised reasonable care to prevent and correct

discriminatory behavior. Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of

Boca Raton, 524 U.S. 775 (1998). In doing so, the employer waives any privilege that would

otherwise protect documents related to the adequacy of the investigation, including documents

reflecting its efforts to prevent and correct the discrimination. McKenna v. Nestle Purina

PetCare Co., No. 2:05-cv-976, 2007 WL 433291, at *4 (S.D. Ohio Feb. 5, 2007). In the absence

of any allegation of a failure to investigate, the Faragher-Ellerth defense neither applies nor is

helpful in this case. 

The appropriate inquiry, which neither party identified in their briefing, is whether the

three-prong test applies that the Eighth Circuit crafted in Shelton v. American Motors Corp., 805

F.2d 1323 (8th Cir. 1986). The analysis begins with recognition that the Federal Rules of Civil

Procedure generously permit discovery “regarding any nonprivileged matter that is relevant to

any party’s claim or defense . . . .” Fed. R. Civ. P. 26(b)(1). Consistent with the Rules’ liberal

stance on discovery, Fed. R. Civ. P. 30(a)(1) provides that: “[a] party may, by oral questions,

depose any person, including a party, without leave of court . . . .” (emphasis added). The Sixth

Circuit has adopted the three-part test articulated in Shelton, limiting this presumption of

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openness in discovery in instances when the deponent is opposing trial/litigation counsel: 

Discovery from an opposing counsel is “limited to where the party seeking to take

the deposition has shown that (1) no other means exist to obtain the information . .

. ; (2) the information sought is relevant and nonprivileged; and (3) the information

is crucial to the preparation of the case.”

Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002) (quoting Shelton,

805 F.2d at 1327 (citation omitted)).

In Shelton, parents of a child who died as a result of a rollover accident brought suit

against an automobile manufacturer. 805 F.2d at 1324. Plaintiff sought to depose opposing trial

counsel about her discovery preparation for that case, namely, about the existence of certain

documents possessed by counsel’s client. Id. at 1326. Plaintiff’s counsel admitted that his sole

purpose in deposing opposing counsel was to determine whether opposing counsel had truthfully

complied with his written discovery. Id. at 1327-28. It was against this backdrop that the

Shelton court crafted the three-part test to be satisfied prior to a deposition of opposing trial

counsel. Notably, prior to setting forth the three-part test, the Shelton court declared: “We do not

hold that trial counsel is absolutely immune from being deposed. We recognize that

circumstances may arise in which the court should order the taking of opposing counsel’s

deposition.” Id. at 1327. Further, in concluding that opposing counsel could not be deposed

under the circumstances presented in that action, the Shelton court specifically noted that: “[i]nhouse counsel in this case had nothing to do with this lawsuit except to represent her client.” 

805 F.2d at 1330.

The Eighth Circuit revisited this issue in Pamida, Inc. v. E.S. Originals, 281 F.3d 726

(8th Cir. 2002). Pamida involved a suit against a manufacturer seeking indemnification for

attorney’s fees and costs incurred in defending an underlying, completed patent infringement

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suit. 281 F.3d at 728. The Pamida Court identified the principle rationales driving Shelton:

The Shelton test was intend [sic] to protect against the ills of deposing opposing

counsel in a pending case which could potentially lead to the disclosure of the

attorney's litigation strategy. Because this abuse of the discovery process had

become an ever increasing practice, this Court erected the Shelton test as a barrier

to protect trial attorneys from these depositions. But Shelton was not intended to

provide heightened protection to attorneys who represented a client in a completed

case and then also happened to represent that same client in a pending case where the

information known only by the attorneys regarding the prior concluded case was

crucial. In such circumstances, the protection Shelton provides to opposing counsel

only applies because opposing counsel is counsel in the instant case and not because

opposing counsel had represented the client in the concluded case.

Id. at 730-31 (citations omitted) (emphasis added). Thus, Padima suggests that Shelton only

applies when: (1) the deponent is either trial/litigation counsel in the instant case; and (2) the

information sought would expose litigation strategy in the pending case. See id. 

Like the Padima court, other courts presented with similar requests to extend Shelton

have decline to do so. See, e.g., Williams v. Wellston City Sch. Dist., No. 2:09-cv-566, 2010 WL

4513818, * (S.D. Ohio Nov. 2, 2010) (declining to extend Shelton to situations in which the

proposed deponent is in-house counsel who had not served as counsel in the subject litigation);

Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., 2008 WL 199709, *3 (W.D. Tenn.

January 23, 2008) (finding Shelton inapplicable where proposed deponent was the prosecuting

attorney of the patent-in-suit, but was not litigation counsel in the instant action and where there

was no contention that allowing his deposition to be taken would divulge any litigation strategy);

El Bannan v. Yonts, 2007 WL 1428653, *6 (W.D. Ky. May 11, 2007) (declining to apply the

Shelton test where it was unclear whether the proposed attorney deponent was a member of the

Defendant’s legal team and where the court determined that the proposed deponent “may have

knowledge of certain facts outside the scope of legal representation related to the case”); and

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United States v. Philip Morris, Inc., 209 F.R.D. 13, 15 and 19 (D.D.C. 2002) (declining to

extend Shelton where the proposed deponents were the opposing party’s in-house counsel, but

were not trial counsel in the instant action and where the information sought was non-privileged

and relating to “‘public relations,’ ‘corporate conduct and positions,’ marketing strategies,

tobacco research and development, and the Master Settlement Agreement”). 

In light of the foregoing, the parties are DIRECTED to brief (1) whether Shelton applies;

and (2) if so, what the outcome is here under the Shelton analysis WITHIN SEVEN (7) DAYS

OF THE DATE OF THIS ORDER. In light of the upcoming discovery cutoff deadline, there

will be no memoranda in opposition or reply briefs. 

IV.

Accordingly, Plaintiff’s request to compel testimony related to the April 2010 conference

with counsel is DENIED. (EF No. 33.) With respect to the remaining two issues, Defendants

are DIRECTED to submit for in camera inspection an affidavit setting forth in detail the

substance of the communications of the June 2010 meeting, focusing on the communications and

the role of in-house counsel, and the parties are DIRECTED to brief the issues of whether (1)

Shelton applies to Plaintiff’s request to depose ODPS’ counsel and (2) if so, what the outcome is

under the Shelton analysis, WITHIN SEVEN (7) DAYS OF THE DATE OF THIS ORDER. 

In light of the upcoming discovery deadline, no memoranda in opposition or reply briefs will be

permitted. 

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IT IS SO ORDERED. 

Date: August 21, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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