Total Quality Logistics, LLC, 275 F.R.D. 251, 253 n.1 (S.D. Ohio 2011). Limited
exceptions exist if the party “claims some personal right or privilege with regard to the
documents sought.” Mann v. Univ. of Cincinnati, 1997 WL 280188, at *4 (6th Cir. May
27, 1997) (per curiam).’ “The party seeking to quash a subpoena bears the ultimate
burden of proof.” Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D.
Ohio 2011) (citing White Mule Co. v. ATC Leasing Co. LLC, 2008 WL 2680273, at *4
(N.D. Ohio June 25, 2008)).
Ill. ANALYSIS

R+L contends that the Schneider Downs Documents should not be produced
because they are protected by the attorney-client privilege and the work-product doctrine
as they were prepared by consultants at R+L counsel’s request to assist R+L attorneys in
rendering legal advice. See Williamson v. Recovery Ltd. P’ship, 2:06-cv-292, 2016 WL
4920773, at *2 (S.D. Ohio Sept. 15, 2016) (finding that the attorney-client privilege
extends to memoranda and working papers prepared by an accountant or consultant
whose services are necessary in order for the attorney to provide legal advice to the

client). Moreover, R+L argues that the Schneider Downs subpoena should be quashed

7 ERTS does not dispute that R+L has standing to seek to quash the Schneider Downs subpoena
on personal right/privilege grounds with regards to the documents sought.


conducted by Schneider Downs and is not at issue in the pending motions before the
Court.

Although the Schneider Downs Audit may be central to the allegations in the
Clinton County Fraud Complaint, it is not central to the proceedings before this Court.
The Court finds that R+L simply attaching the Clinton County Fraud Complaint does not
place that Schneider Downs Audit at issue as it is not being used as a sword in this action.

Finally, pursuant to Rule 26(b)(4)(D), materials of non-testifying experts are only
subject to disclosure “on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same subject by other
means.” Fed. R. Civ. P. 26(b)(4)(D). Pursuant to Rule 26(b)(3), materials of non-
testifying experts are only discoverable if a “party shows that it has substantial need for
the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Schneider
Downs qualifies as a non-testifying expert and its work was related to R+L’s litigation
with ERTS. (Doc. 9-12). R+L has agreed to produce to ERTS all documents that it
provided to Schneider Downs. Because ERTS can perform its own accounting analysis
on those documents, the Court does not find that “exceptional circumstances” are present
to justify disclosure of the Schneider Down Documents, nor has ERTS demonstrated

“substantial need” for the materials.*

5 Because the Schneider Downs Documents are not discoverable, ERTS is not entitled to a
privilege log of the materials.


26(b)(1). Relevance for discovery purposes is extremely broad. Lewis v. ACB Bus.
Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). “The scope of examination permitted
under Rule 26(b) is broader than that permitted at trial. The test is whether the line of
interrogation is reasonably calculated to lead to the discovery of admissible evidence.”
Mellon v. Cooper—Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970). However, “district
courts have discretion to limit the scope of discovery where the information sought is
overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (citing Fed. R. Civ. P.
26(b)(2)).

The party moving to compel discovery must certify that he “has in good faith
conferred or attempted to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1); see
also S.D. Ohio Civ. R. 37.2. ERTS has certified that is has made good faith attempts to
obtain the necessary discovery without involving the Court. (Doc. 47).

B. Motion to Quash

Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. It
permits parties in legal proceedings to command a non-party to, among other things,
produce documents. Fed. R. Civ. P. 45(a)(1). Upon a timely motion to quash, a court
“must quash or modify a subpoena” that “fails to allow a reasonable time to comply,”
“requires disclosure of privileged or other protected matter, if no exception or waiver
applies,” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). “A party

generally lacks standing to seek to quash a subpoena issued to a nonparty.” Hendricks v.

4


because it seeks documents that are protected under Rule 26(b)(3)’ and (4).4 R+L filed
an affidavit that disclosed that Schneider Downs was engaged by R+L to assist with its
legal strategy related to litigation with ERTS. (Doc. 46-2 at §§ 4-15).

ERTS does not dispute that the Schneider Downs Documents are protected by the
attorney-client privilege and work-product doctrine, but instead argues that R+L has
implicitly waived that privilege by affirmatively relying on the Schneider Downs Audit
and placing the Schneider Downs Audit at issue. ERTS contends that R+L put the
Schneider Downs Audit at issue by relying on the Audit in its pleadings. (Doc. 59 at 2—
3).

“Litigants cannot hide behind the [attorney-client] privilege if they are relying on
privileged communications to make their case or, more simply, cannot use the privilege
as a shield and a sword.” In re United Shore Financial Services, LLC, 2018 WL
2283893, at *2 (6th Cir. Jan. 3, 2018) (internal quotation marks omitted) (citing In re
Lott, 424 F.3d 446, 454 (6th Cir. 2005). Similarly, the work-product doctrine can be
implicitly waived if it is used as a sword and a shield. Jn re Columbia/HCA Healthcare
Corp. Billing Practices Litig., 293 F.3d 389, 306-07 (6th Cir. 2002). “[L]itigants cannot
hide behind the [attorney-client] privilege if they are relying upon privileged
3 Rule 26(b)(3) provides: “Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by or for another party or its

representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or
agent).” Fed. R. Civ. P. 26(b)(3)(A).

* Rule 26(b)(4) provides: “Ordinarily, a party may not, by interrogatories or deposition, discover
facts known or opinions held by an expert who has been retained or specially employed by
another party in anticipation of litigation or to prepare for trial and who is not expected to be
called as a witness at trial.” Fed. R. Civ. P. 26(b)(4)(D).

6


Accordingly, because R+L did not implicitly waive attorney-client or work-
product privilege over the Schneider Downs Documents and ERTS has not demonstrated
“exceptional circumstances” or “substantial need” for the materials, the subpoena to
Schneider Downs is quashed and R+L is not compelled to produce the Schneider Down
Documents.

IV. CONCLUSION
For the foregoing reasons,
1) R+L’s motion to quash the subpoena to Schneider Downs (Doc. 46) is
GRANTED.

2) ERTS’s motion to compel R+L to produce documents regarding its “fraud

audit” (Doc. 47) is DENIED.

IT IS SO ORDERED.

Date: if 4

United States District Judge


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
LEWIS ENVIRONMENTAL, INC., Case No. 1:17-cv-674
Plaintiff, Judge Timothy S. Black
vs.
EMERGENCY RESPONSE &

TRAINING SOLUTIONS, INC., et al.,

Defendants.

ORDER

This civil action is before the Court on Defendant R+L Carriers, Inc. (“R+L”)’s
motion to quash the subpoena issued to Schneider Downs & Co., Inc. (“Schneider
Downs”) (Doc. 46) and Defendant Emergency Response & Training Solutions, Inc.
(“ERTS”)’s motion to compel R+L to produce documents regarding its “fraud audit”
(Doc. 47), as well as the parties’ responsive memoranda (Docs. 48, 56, 59).

L BACKGROUND

This action arises out of allegedly unpaid invoices for services performed by
Plaintiff Lewis Environmental, Inc. (“Lewis”) for Defendants R+L and ERTS. ERTS
provided emergency and non-emergency spill and response and remediation services for
R+L, including through subcontractors, from approximately 2008 until 2017. Lewis
provides emergency and environmental management services. ERTS, in its capacity as a
contractor for R+L, directly hired Lewis as a subcontractor to perform such services.
Lewis claims it performed $76,372.75 of contract work and has not been paid. Lewis

filed its complaint in October 2017. (Doc. 1).


communications to make their case.” Orris v. U.S., 2005 WL 2861163, at *1 (S.D. Ohio
Nov. 1, 2005); see also, Financial Guaranty Insurance Co. v. Putnam Advisory Co., LLC,
314 F.R.D. 85, 90-91 (S.D.N.Y. 2016) (finding that a party had waived attorney-client
and work-product privileges over a consultant’s report where the party “used the report to
sustain its causes of action”). Ultimately, the Court finds that R+L did not waive its
attorney-client privilege or work-product doctrine protections in regards to the Schneider
Downs Documents because R+L did not rely on the Schneider Downs Audit to sustain its
claims or defenses in this lawsuit.

The only reference to the Schneider Downs Audit in R+L’s pleadings are in the
Clinton County Fraud Complaint, which is attached to R+L’s pleadings. (Doc. 50-1 at
4 58-59, 81, 89, 92, 96-97). The Court finds that this cursory reference to the Schneider
Downs Audit in an attachment to its pleadings is not sufficient to show that the Schneider
Downs Audit was relied upon or placed at issue in order to sustain R+L’s cause of action.
While R+L has engaged Schneider Downs to provide accounting analysis in this action
(Doc. 46 at 12-13), R+L’s pleadings do not rely on Schneider Downs’ work to sustain its
claims or defenses. Additionally, because the Schneider Downs Audit does not relate to
the fraud alleged by R+L in this case, ERTS does not need the Schneider Downs
Documents for its defenses in this action.

Moreover, the Court finds that R+L did not rely on or place the Schneider Downs
Audit at issue in its motion for leave to amend its pleadings. (Docs. 37, 43). Instead, in

order to justify its motion for leave, R+L referenced the 2018 Audit, which was not


In December 2017, R+L filed an answer to Lewis and cross-claims against ERTS
for breach of contract, breach of confidentiality, and unjust enrichment. (Doc. 16).

ERTS subsequently filed its answer to Lewis and cross-claims against R+L for breach of
contract, unjust enrichment, and indemnity and sought recovery for all of R+L’s allegedly
unpaid invoices to ERTS, not just the invoices related to Lewis’ work. (Doc. 22). ERTS
filed an amended answer to R+L’s cross-claim and amended cross-claim against R+L on
June 11, 2018. (Doc. 33).

On October 23, 2018, the Court granted R+L’s motion for leave to amend its
answer and cross-claim. (Doc. 49). R+L’s amended pleadings added allegations and
affirmative defenses of fraud against Lewis and ERTS. (Doc. 50). In its amended
pleadings, R+L attached a state-court complaint filed by R+L against ERTS in Clinton
County, Ohio (the “Clinton County Fraud Complaint’) in December 2017, in which the
R+L alleged that ERTS had engaged in fraud. The Clinton County Fraud Complaint
referenced a fraud audit conducted by Schneider Downs (the “Schneider Downs Audit”)
in 2017 that related to services provided by ERTS, but purportedly did not relate to
Lewis’s services or invoices. In its briefing on its motion to amend the pleadings, R+L
referenced a fraud audit (the “2018 Audit”) that had been conducted during this litigation
that “uncovered evidence that ERTS defrauded R+L.” (Doc. 44 at 6). R+L has informed
the Court that the 2018 Audit was not performed by Schneider Downs and did not

consider any part of the Schneider Downs Audit. (Doc. 56 at 1).


R+L now moves, pursuant to Fed. R. Civ. P. 45(d)(3), to quash ERTS’s subpoena
to Schneider Downs to the extent it requests attorney-client privilege and work-product
protected documents.'! ERTS moves, pursuant to Fed. R. Civ. P. 26 and 37, to compel
R+L to produce information and documents related to the Schneider Downs Audit. The
opposing motions require that the Court determine whether three groups of documents
should be produced: (1) communications between R+L and Schneider Downs; (2) final
and draft reports of the Schneider Downs Audit; (3) Schneider Downs’ internal
documents and correspondence, including interview notes, related to the Schneider
Downs Audit (collectively, the “Schneider Downs Documents”).

II. STANDARD OF REVIEW

A. Motion to Compel

Rule 37 of the Federal Rules of Civil Procedure authorizes a motion to compel
discovery when a party fails to produce documents as requested under Rule 34. Fed. R.
Civ. Pro. 37(a)(3)(B)(iv). “The proponent of a motion to compel discovery bears the
initial burden of proving that the information sought is relevant.” Martin v. Select
Portfolio Serving Holding Corp., No. 1:05-cv-273, 2006 U.S. Dist. LEXIS 68779, at *2
(S.D. Ohio Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D.
154, 159 (D.D.C.1999)).

Rule 26(b) provides that “[p]arties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.

' R+L has already agreed to produce and identify the internal R+L documents that it provided to
Schneider Downs.