THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN GARRETT, et al.,

Plaintiffs,

v.

THE OHIO STATE UNIVERSITY,

Defendant.

)

)

)

)

)

)

)

)

)

Case No. 2:18-cv-00692

Judge Michael H. Watson

Chief Magistrate Judge Elizabeth P. 

Deavers

________________________________________ )

)

STEVE SNYDER-HILL, et al., ) Case No. 2:18-cv-00736

)

 Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P. 

) Deavers

THE OHIO STATE UNIVERSITY, )

)

 Defendant. )

________________________________________ )

)

NICHOLAS NUTTER, et al. ) Case No. 2:19-cv-02462

)

Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P.

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

)

ROCKY RATLIFF, ) Case No. 2:19-cv-04746

)

 Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P.

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

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2

JOHN DOES 151-166, )

) Case No. 2:20-cv-03817

Plaintiffs, )

) Judge Michael H. Watson

v. )

) Chief Magistrate Judge Elizabeth P. 

THE OHIO STATE UNIVERSITY, ) Deavers

)

Defendant. )

________________________________________ )

DEFENDANT THE OHIO STATE UNIVERSITY’S MOTION FOR ORDER 

REGARDING SETTLEMENT PROGRAM CONSULTING AGREEMENT

In response to plaintiffs’ counsel, Scott Smith’s May 27, 2021 public records request to 

defendant The Ohio State University (“Ohio State”), and in furtherance of Ohio State’s continued 

efforts to be transparent in regard to the Strauss Individual Settlement Program that was publicly

initiated on May 7, 2021, in the above-captioned actions, see

https://StraussIndividualSettlementProgram.com/, Ohio State respectfully requests that the Court 

enter an Order:

(1) Permitting Ohio State to submit to the Court for its in camera inspection a copy of 

the privileged Settlement Program Consulting Agreement (“Consulting 

Agreement”) entered into on May 3, 2021, between Ohio State’s outside counsel in 

the above-captioned actions, Carpenter Lipps & Leland LLP (“CLL”), and CLL’s

consultant for the Strauss Individual Settlement Program, Wolf Garretson LLC;

(2) Directing Ohio State to provide to Scott Smith (and to one representative from each 

plaintiffs’ counsel in the other four above-captioned actions, upon the request of 

such counsel), under a “Highly Confidential—Attorneys’ Eyes Only” designation,

a copy of the privileged Consulting Agreement; and 

(3) Finding that such limited disclosure of the privileged Consulting Agreement by 

Ohio State does not constitute a waiver of the attorney-client privilege or work 

product doctrine as to any other documents or communications related to the 

Consulting Agreement.

With this motion, Ohio State is providing a copy of the privileged Consulting Agreement 

in a sealed envelope to the Court for its in camera inspection, pursuant to and in compliance with 

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the procedures set out in Southern District of Ohio Local Rule 5.2.1(b) governing documents 

submitted for in camera inspection. 

The grounds for this Motion are set forth more fully in the accompanying Memorandum in 

Support. For the Court’s convenience, a proposed order granting the motion is attached.

Respectfully submitted,

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

Special Counsel for Defendant The Ohio State 

University

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MEMORANDUM IN SUPPORT

I. BACKGROUND.

Plaintiffs in the above-captioned five cases are former male students of The Ohio State 

University (“Ohio State”) who are suing Ohio State relating to the conduct of former Ohio State 

physician Dr. Richard Strauss.

A. The Court’s Efforts Regarding Settlement.

This Honorable Court has both encouraged and facilitated settlement. In this regard, the 

Court previously entered an order on May 24, 2019, to facilitate the mediation that was scheduled 

for June 15, 2019. The May 24, 2019 order directed Ohio State to provide to “one representative 

from each Plaintiffs’ counsel an unredacted version of the Perkins Coie report (‘Report’), and 

stated “[t]he Report shall be designated ‘Highly Confidential—Attorneys’ Eyes Only.’” See

Garrett, Opinion and Order (Doc. 90) at 2.

At the status conference held the same day, the Court stated its “judicial purpose” in 

ordering the disclosure of the unredacted Perkins Coie Report was to facilitate settlement. Garrett, 

Transcript of Status Conference (Doc. 91) at 6:17-25, 14:4-5, 14-15. Ohio State complied with 

both the May 24, 2019 and June 15, 2019 orders. 

B. The Strauss Individual Settlement Program And The Consulting Agreement.

On May 3, 2021, as part of its continued efforts to bring closure and resolution to Strauss 

survivors, Ohio State announced that it was offering a “new public settlement program” through 

which eligible plaintiffs and their counsel in the five above-captioned actions who had not resolved 

their claims against Ohio State by May 1, 2021, could do so on an individual basis (the “Program”). 

See Notice of Intent to Establish Strauss Individual Settlement Program (“Notice of Intent”), 

Garrett (Doc. 176), Snyder-Hill (Doc. 150), Nutter (Doc. 43), Ratliff (Doc. 29), and John Does 

151-166 (Doc. 24). 

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Ohio State’s outside counsel, Carpenter Lipps & Leland LLP (“CLL”), retained Matt 

Garretson, the Special Master in the March 6, 2020 and October 12, 2020 settlements, as a 

consultant regarding the design of the Program and to independently administer the Program. See

Notice of Intent, id., at ¶ 9; https://StraussIndividualSettlementProgram.com/. On May 3, 2021, 

in connection with Mr. Garretson’s services related to the Program, Mr. Garretson’s firm, Wolf

Garretson LLC, and CLL entered into a Settlement Program Consulting Agreement (“Consulting 

Agreement”) pursuant to which CLL retained Mr. Garretson and his firm as a consultant. Because 

the Consulting Agreement is protected by the attorney-client privilege and the work product 

doctrine, Ohio State is providing a copy of the Consulting Agreement to the Court for its in camera

inspection with this motion, pursuant to S.D. Ohio Civ. R. 5.2.1(b). 

On May 7, 2021, Ohio State publicly announced the details of, and initiated, the Program. 

Since May 7, 2021, all non-privileged documents, communications, and forms for the Program 

have been publicly available at https://StraussIndividualSettlementProgram.com/. Mr. Garretson’s 

link is provided in the Program for purposes of plaintiffs’ counsel contacting him directly. The 

deadline for eligible plaintiffs in the five above-captioned actions to participate in the Program 

through their counsel is September 4, 2021, at midnight Eastern Standard Time. 

C. The May 27, 2021 Public Records Request To Ohio State.

On May 27, 2021, notwithstanding the public website for the Program and the link to Mr. 

Garretson provided in the Program, one of the counsel for plaintiffs in the Snyder-Hill case, Scott 

Smith, served a public records request upon Ohio State, with a copy to Ohio State’s outside 

counsel, CLL. See attached Exhibit A. Mr. Smith’s public records request asked for the following: 

1- All contracts or agreements with Matt Garretson and/or Wolf Garretson 

concerning the administration of the Strauss Individual Settlement Program;

2- All documents or communications concerning the criteria, factors, or allocation 

formula Matt Garretson (including Mr. Garretson himself, the firm of Wolf 

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Garretson, and any agent or employee of Mr. Garretson and/or Wolf Garretson) 

will use to determine the Individual Settlement Amounts for those that 

participate in the Strauss Individual Settlement Program, including but not 

limited to allocating award amounts within the tier range and the Extraordinary 

Injury Fund award;

3- All documents authored by, or shared with, Matt Garretson (including Mr. 

Garretson himself, the firm of Wolf Garretson, and any agent or employee of 

Mr. Garretson and/or Wolf Garretson) concerning the Tier Caps (e.g., the 

calculation of the Tier Caps or the potential impact of the Tier Caps on reducing 

the tier range) for the Strauss Individual Settlement Program;

4- All documents authored by, or shared with, Matt Garretson (including Mr. 

Garretson himself, the firm of Wolf Garretson, and any agent or employee of 

Mr. Garretson and/or Wolf Garretson) concerning the Extraordinary Injury 

Fund Total Cap (e.g., the calculation of the Extraordinary Injury Fund Total 

Cap or the potential impact of the Extraordinary Injury Fund Total Cap on 

reducing the Extraordinary Injury Fund Individual Range Cap) for the Strauss 

Individual Settlement Program; and

5- All settlement agreements OSU has entered into concerning allegations related 

to Dr. Richard Strauss after the master settlement agreement(s) entered into on 

or about March 6, 2020.

Id. (footnote omitted). 

Ohio State does not have any non-privileged records responsive to parts #1, #2, #3, and #4 

of the above public records request, other than the information that has been publicly accessible

since May 7, 2021, at www.StraussIndividualSettlementProgram.com. The publicly accessible 

documents on the website contain all the material information for the Program. On June 11, 2021, 

Ohio State provided to Mr. Smith the Master Settlement Agreement and Release entered into on 

October 12, 2020, as responsive to part #5 of the public records request. 

D. Ohio State’s Current Request To The Court Regarding The Consulting

Agreement.

The Consulting Agreement is responsive to part #1 of the public records request seeking 

“[a]ll contracts or agreements with Matt Garretson and/or Wolf Garretson concerning the

administration of the Strauss Individual Settlement Program.” The Consulting Agreement, 

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however, contains communications and information protected by the attorney-client privilege and 

the work product doctrine, and Ohio State has denied the public records request for the Consulting 

Agreement on that basis. 

Nevertheless, in furtherance of Ohio State’s continued efforts to be transparent and with 

the hope of facilitating settlement, Ohio State desires to provide the Consulting Agreement to Mr. 

Smith (and to one representative from each plaintiffs’ counsel in the other four above-captioned 

actions, upon the request of such counsel). While Ohio State does not believe a limited disclosure 

of the privileged Consulting Agreement would constitute a waiver of the attorney-client privilege 

or work product doctrine as to any other documents or communications related to the Consulting 

Agreement, out of an abundance of caution, Ohio State respectfully requests that the Court enter 

an order:

(1) Permitting Ohio State to submit to the Court for its in camera inspection a copy of 

the privileged Consulting Agreement;

(2) Directing Ohio State to provide to Scott Smith (and to one representative from each 

plaintiffs’ counsel in the other four above-captioned actions, upon the request of 

such counsel), under a “Highly Confidential—Attorneys’ Eyes Only” designation, 

a copy of the privileged Consulting Agreement; and 

(3) Finding that such limited disclosure of the privileged Consulting Agreement by 

Ohio State does not constitute a waiver of the attorney-client privilege or work 

product doctrine as to any other documents or communications related to the 

Consulting Agreement.

II. DISCUSSION.

A. The Court May Enter The Requested Order.

Rule 1 of the Federal Rules of Civil Procedure provides that such rules “should be 

construed, administered, and employed by the court and the parties to secure the just, speedy, and 

inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. In furtherance of 

those goals, “[d]istrict courts unquestionably have substantial inherent power to manage their 

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dockets.” In re NLO, Inc., 5 F.3d 154, 157 (6th Cir. 1993) (citing Link v. Wabash R. Co., 370 U.S. 

626, 629–30 (1962)); see also In re Univ. of Michigan, 936 F.3d 460, 463 (6th Cir. 2019) 

(“Congress has given district courts great control over their dockets.”).

In regard to settlement specifically, “the Federal Rules of Civil Procedure provide . . . the 

valuable tool of encouraging parties to settle when appropriate.” In re Univ. of Michigan, 936 F.3d 

at 463 (citing Fed. R. Civ. P. 16). “The utilization of procedures designed to facilitate settlement 

whenever possible is expressly encouraged by Rule 16 [of the Federal Rules of Civil Procedure], 

for a case that settles obviously consumes much less of the court’s scarce resources than a case 

that proceeds to a full trial on the merits.” In re NLO, Inc., 5 F.3d at 157.

Rule 83 of the Federal Rules of Civil Procedure additionally authorizes a federal district 

court to “adopt and amend rules governing its practice.” Fed. R. Civ. P. 83(a)(1). Such local rules 

“have the force of law.” Hollingsworth v. Perry, 558 U.S. 183, 191 (2010); Hayes v. Comm’r of 

Soc. Sec., 895 F.3d 449, 453 (6th Cir. 2018). 

Both the Southern District of Ohio and this Honorable Court have recognized that 

settlements serve a critical role in the judicial process and have promulgated rules, supplemental 

rules, and standing orders that are expressly designed to facilitate the settlement of cases. See

Southern District of Ohio Local Rule 16.3 (authorizing the Court to assign cases to an alternative 

dispute resolution (“ADR”) process and to consult with counsel regarding ADR efforts); Southern 

District of Ohio Supplemental Procedures for Alternative Dispute Resolution, Section 1.0 (stating 

ADR procedures are “designed to achieve the early, cost-effective, and fair resolution of civil 

cases” and authorizing the presiding district or magistrate judge to “evaluate the case” for ADR 

processes “throughout the pendency of the civil action”); Standing Orders of The Honorable 

Michael H. Watson, Section II, at 7-8 (providing that “the Court may schedule a settlement 

conference at any time in order to facilitate settlement,” and “counsel may request the Court 

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schedule a settlement conference at any time.”).

B. The Consulting Agreement Is Protected By The Attorney-Client Privilege.

Ohio Revised Code § 149.43(A)(1)(v) excepts from disclosure records protected by the 

attorney-client privilege. See State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 

2005-Ohio-1508, 824 N.E.2d 990, ¶ 24. “The attorney-client privilege, which covers records of 

communications between attorneys and their government clients pertaining to the attorneys’ legal 

advice, is a state law prohibiting release of those records.” State ex rel. Dawson v. Bloom-Carroll 

Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 27 (citing State ex rel. 

Besser v. Ohio State Univ. 87 Ohio St.3d 535, 542, 721 N.E.2d 1044, 1050 (Ohio 2000)). 

Ohio State’s outside counsel, CLL, retained Wolf Garretson LLC as a consultant relating 

to the resolution of legal claims in the Strauss litigation through the Program. The attorney-client 

privilege extends to consultants like Wolf Garretson LLC who assist other attorneys. See Upjohn 

Co. v. United States, 449 U.S. 383, 390 (1981) (“[T]he privilege exists to protect not only the 

giving of professional advice to those who can act on it but also the giving of information to the 

lawyer to enable him to give sound and informed advice.”); Cooey v. Strickland, 269 F.R.D. 643, 

652 (S.D. Ohio 2010) (recognizing that the attorney-client privilege “must include all the persons 

who act as the attorney’s agents”); State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 

121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27 ( “[t]he attorney-client privilege does 

not require the communication to contain purely legal analysis or advice to be privileged,” but “if 

a communication between a lawyer and client would facilitate the rendition of legal services or 

advice, the communication is privileged”) (citations, internal quotation marks and brackets 

omitted).

Specifically relevant here, the attorney-client privilege extends to contracts or agreements 

retaining consultants such as Wolf Garretson LLC. See Graff v. Haverhill N. Coke Co., No. 1:09-

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CV-670, 2012 WL 5495514, *10 (S.D. Ohio Nov. 13, 2012) (outside counsel’s letter retaining 

third-party consultant to provide legal advice was protected by attorney-client privilege where the 

letter included “the motive of the client in seeking representation [and] the specific nature of the 

services” to be provided); State ex rel. ESPN v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio2690, 970 N.E.2d 939, ¶ 38 (“[T]here is no requirement in public-records mandamus cases that 

public offices or officials must ‘conclusively establish’ the privilege by producing agreements 

retaining agents or joint-defense agreements with attorneys representing other clients”). 

Accordingly, the Consulting Agreement is protected by the attorney-client privilege. 

C. The Consulting Agreement Is Protected By The Work Product Doctrine.

In addition to the attorney-client privilege, the Consulting Agreement is protected by the 

attorney work product doctrine. The work product doctrine provides a separate, and in many 

respects “broader” protection from disclosure than the attorney-client privilege. See In re Antitrust 

Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986) (quoting United States v. Nobles, 422 U.S. 225, 

238 n. 11 (1975)). The work product doctrine not only protects “materials obtained or prepared in 

anticipation of litigation, but also the attorney’s mental impressions, including thought processes, 

opinions, conclusions, and legal theories.” Konecranes Glob. Corp. v. Mode Tech (Beijing) Co., 

No. CV 2:19-MC-41, 2020 WL 3265538, at *3 (S.D. Ohio June 17, 2020) (quoting Hickman v. 

Taylor, 329 U.S. 495, 511 (1947)); see also In re Election of Nov. 6 1990 for Off. of Atty. Gen. of 

Ohio, 57 Ohio St. 3d 614, 615, 567 N.E.2d 243, 244 (1991) (notes prepared by agents of attorney 

at attorney’s direction were protected by work product doctrine). Accordingly, the Consulting 

Agreement also constitutes attorney work product. 

D. Ohio State Seeks A Court Order Out Of An Abundance Of Caution To 

Preserve Privilege And Work Product Protections.

While Ohio State’s disclosure of the privileged Consulting Agreement would waive such 

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protections as to the Consulting Agreement itself, such limited disclosure would not constitute a 

waiver of such protections as to any other documents or communications related to the Consulting 

Agreement. 

The Sixth Circuit and Southern District of Ohio have stated that, in determining the scope 

of waiver, “the District Court must be guided by fairness concerns” as set out in Federal Rule of 

Evidence 502. See In re Grand Jury Proc. Oct. 12, 1995, 78 F.3d 251, 256 (6th Cir. 1996); Itskin 

v. Gibson, No. 2:10-CV-00689, 2011 WL 5326165, at *5 (S.D. Ohio Nov. 7, 2011), objections 

overruled, No. 2:10-CV-689, 2012 WL 787400 (S.D. Ohio Mar. 9, 2012) (“[W]hen waiver does 

occur, the Federal Rules of Evidence provide guidance as to whether waiver of certain disclosed 

materials constitutes waiver of undisclosed materials involving the same subject matter”) (citing 

Fed. R. Evid. 502). 

“The advisory committee’s note [to Federal Rule of Evidence 502] states that ‘a subject 

matter waiver (of either privilege or work product) is reserved for those unusual situations in which 

fairness requires a further disclosure of related, protected information, in order to prevent a 

selective and misleading presentation of evidence to the disadvantage of the adversary.’” Irth Sols., 

LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021, at *15 (S.D. Ohio Aug. 

2, 2017), objections overruled, No. 2:16-CV-219, 2018 WL 575911 (S.D. Ohio Jan. 26, 2018)

(finding no subject matter waiver where “Defendant did not put protected information into this 

litigation in a selective, misleading, and unfair manner.”). In other words, “a party should not be 

able to use such communications as both sword and a shield, selectively disclosing only favorable 

portions of the communications on that subject and concealing the remainder.” Waters v. Drake,

No. 2:14-CV-1704, 2016 WL 8118193, at *3 (S.D. Ohio Feb. 4, 2016); see also In re Grand Jury 

Proc. Oct. 12, 1995, 78 F.3d at 256 (citing In re Dayco Corp. Derivative Securities Litigation, 99

F.R.D. 616, 619 (S.D. Ohio 1983) (“Generally, waiver of a privilege occurs when actions by the 

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holder would make it unfair to insist that the privilege still exists.”) (emphasis added); In re Von 

Bulow, 828 F.2d 94, 102 (2nd Cir.1987) (“Applying the fairness doctrine, we hold therefore that 

the extrajudicial disclosure of an attorney-client communication—one not subsequently used by 

the client in a judicial proceeding to his adversary’s prejudice—does not waive the privilege as to 

the undisclosed portions of the communications.”)); Waters, 2016 WL 8118193, at *3 (finding “no 

merit in the argument that the public disclosure of the [] Report . . . somehow acted as a waiver of 

privilege with respect to communications about that report as it was being drafted; agreeing that 

“[i]t is generally held that the public disclosure of a document—even a voluntary one—does not 

waive the attorney-client privilege as to the subject matter of the document itself, but, at most, to 

any privileged communications which are revealed in the public document.”). 

Here, Ohio State does not seek to selectively disclose the privileged Consulting Agreement 

in order to gain an unfair advantage over, or to disadvantage or prejudice, the Strauss survivors in 

the litigation or otherwise. To the contrary, Ohio State is exploring options for the disclosure of

the Consulting Agreement because Mr. Smith has expressly requested the Consulting Agreement 

pursuant to a public records request to Ohio State. Although Ohio State cannot produce the 

Consulting Agreement as a public record because it is protected by the attorney-client privilege 

and the work product doctrine, Ohio State is attempting to accommodate Mr. Smith in a way that 

both achieves transparency and preserves privilege and work product protections. 

Accordingly, while Ohio State’s limited disclosure of the privileged Consulting Agreement 

would not constitute a waiver of the attorney-client or the work product doctrine as to any other 

documents or communications related to the Consulting Agreement, out of an abundance of 

caution, Ohio State requests that the Court enter an order consistent with its May 24, 2019 and 

June 15, 2019 orders regarding disclosure of the Perkins Coie Report. See Garrett, Opinion and 

Order, Docs. 90 and 132.

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III. CONCLUSION.

For the foregoing reasons, Ohio State respectfully requests entry of an order:

(1) Permitting Ohio State to submit to the Court for its in camera inspection a copy of 

the privileged Consulting Agreement;

(2) Directing Ohio State to provide to Scott Smith (and to one representative from each 

plaintiffs’ counsel in the other four above-captioned actions, upon the request of 

such counsel), under a “Highly Confidential—Attorneys’ Eyes Only” designation, 

a copy of the privileged Consulting Agreement; and 

(3) Finding that such limited disclosure of the privileged Consulting Agreement by 

Ohio State does not constitute a waiver of the attorney-client privilege or work 

product doctrine as to any other documents or communications related to the 

Consulting Agreement.

Respectfully submitted,

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

Special Counsel for Defendant The Ohio State 

University

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was filed electronically on June 24, 2021. Notice was 

sent by operation of the Court’s electronic filing system to all other counsel who have entered an 

appearance and any parties who have entered an appearance through counsel. The parties may 

access this filing through the Court’s ECF system. 

/s/ Michael H. Carpenter

Trial Attorney for defendant The Ohio State 

University

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