[Cite as Hudson v. Greater Cleveland Regional Transit Auth., 2021-Ohio-576.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

ORLANDO HUDSON, : 

 Relator-Appellant, : 

 No. 109405 

 v. : 

 

GREATER CLEVELAND REGIONAL 

TRANSIT AUTHORITY, : 

 Respondent-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 4, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-910726 

 

Appearances: 

Haber Polk Kabat, L.L.P., Andrew A. Kabat, and Daniel M. 

Connell; Ciano & Goldwasser, L.L.P., and Andrew S. 

Goldwasser, for appellant. 

Sheryl King Benford, General Counsel — Deputy General 

Manager for Legal Affairs, and Keith A. Ganther, Acting 

Deputy General Counsel — Litigation; Gallagher Sharp 

L.L.P., Joseph W. Pappalardo, and Richard C.O. Rezie, for 

appellee. 
EILEEN T. GALLAGHER, J.: 

Relator-appellant Orlando Hudson (“Hudson”) appeals from the 

judgment of the trial court granting summary judgment in favor of respondentappellee Greater Cleveland Regional Transit Authority (“GCRTA”) on Hudson’s 

complaint for writ of mandamus seeking certain public records that GCRTA refused 

to produce on the grounds of attorney-client privilege. After a thorough review of 

the facts and the law, we affirm the judgment of the trial court. 

I. Factual and Procedural History 

The underlying issues in this matter stem from an internal 

discrimination complaint brought by Hudson, a lieutenant in the GCRTA police 

force, against GCRTA Police Chief John Joyce (“Joyce”), among others. GCRTA 

hired the law firm of Tucker Ellis to conduct an investigation into Hudson’s 

complaint. According to the affidavit of GCRTA’s Deputy General Counsel, Janet E. 

Burney, GCRTA retained outside counsel Tucker Ellis in order to provide advice and 

legal recommendations to GCRTA in anticipation of possible future litigation and 

because Hudson’s allegations were lodged against upper-level management 

employees at GCRTA. During the investigation, Hudson filed a second 

discrimination complaint, adding further allegations against Joyce and some 

against Commander Michael Gettings. 

At the conclusion of its investigation, Tucker Ellis provided a report and 

executive summary to GCRTA, which provided legal advice and recommendations 

regarding the allegations. The report was initially disseminated to RTA’s in-house 
attorneys, along with the senior manager of RTA’s Office of Equal Opportunity, 

Felicia Brooks-Williams (“Brooks-Williams”), RTA’s chief operating officer, Dr. 

Floun’say Caver (“Caver”), and RTA’s chief executive officer and general manager, 

Joseph Calabrese (“Calabrese”). 

Caver and Calabrese then met with Joyce and provided him with a copy 

of the report to review. As chief, Joyce was one of the people at GCRTA responsible 

for the design and implementation of measures that would be taken in response to 

the conclusions and recommendations of the Tucker Ellis report. Joyce was asked 

during his deposition about sharing the report with lieutenants and sergeants. He 

responded that he believed the justification for sharing the report with “the higher 

level of the command staff” was for them to understand the investigation and 

changes that would be taken and to obtain their input on any new processes. 

Ms. Brooks-Williams met with Hudson and permitted him to view the 

report, but he was not permitted to retain a copy. At this time, she also provided 

him with a confidential memorandum that stated that the investigation into his 

complaints was finished and briefly summarized the findings of the investigation. 

Several months later, Hudson filed a charge alleging race 

discrimination and retaliation with the Equal Employment Opportunity 

Commission (“EEOC”), and GCRTA filed its position statement in response. The 

charge was ultimately dismissed by the EEOC, and Hudson instituted his own civil 

action, which is currently pending. 
Hudson submitted a public-records request seeking the Tucker Ellis 

report, executive summary, all documents on the same subject, all communications 

between Tucker Ellis and GCRTA officials/employees regarding the investigation, 

and all prior drafts of the report and executive summary prepared by Tucker Ellis. 

GCRTA produced certain documents in response to the request, but refused to 

produce the remainder, asserting that they were exempt from disclosure due to 

attorney-client privilege and protected by the work-product doctrine. 

Hudson sought a writ of mandamus in the Cuyahoga County Court of 

Common Pleas. Hudson moved for summary judgment, arguing that (1) privilege 

did not apply to the documents because GCRTA voluntarily disclosed the documents 

to Hudson and Joyce; (2) the documents did not constitute work product because 

they were not created in anticipation of, or preparation for, litigation; and (3) even 

if the work-product doctrine did apply, GCRTA waived privilege because, in relying 

on the report in defense of Hudson’s complaint filed with the EEOC, GCRTA utilized 

the Faragher/Ellerth defense, which Hudson claims effects a waiver of any privilege 

attaching to a party’s investigation of alleged harassment. 

GCRTA opposed summary judgment, arguing that the documents 

were, in fact, work product because GCRTA was concerned about potential litigation 

before the investigation was concluded and the report produced. Further, GCRTA 

asserted that privilege was not waived because it was permitted to disclose the 

documents to Hudson and Joyce, who were high-ranking employees at GCRTA. 

Finally, GCRTA argued that assertion of the Faragher/Ellerth defense cannot 
constitute waiver because Hudson never alleged that GCRTA failed to investigate his 

complaints. 

The trial court denied Hudson’s motion for summary judgment, 

finding that “the limited disclosure to high-ranking individuals within GCRTA did 

not constitute a waiver of RTA’s privilege.” The court therefore held that the sought 

documents were not subject to disclosure as a public record and fell within the 

exception to the Ohio Public Records Act. 

Hudson filed the instant appeal, asserting the following assignment of 

error for our review: 

The trial court erred by finding that an investigation report, the draft 

investigation reports, and the investigation materials were not subject 

to disclosure under Ohio’s Public Records Act on the grounds that they 

were privileged despite the fact that Respondent knowingly and 

voluntarily disclosed the investigation report to third parties, including 

the complaining party and the subject of the complaint, and where the 

Respondent relied upon the report as the basis for its Faragher/Ellerth

affirmative defense. 

II. Law and Analysis 

A. Standard of Review 

We review summary judgment rulings de novo, applying the same 

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct 

an independent review of the record to determine whether summary judgment is 

appropriate. 
Under Civ.R. 56, summary judgment is appropriate when no genuine 

issue exists as to any material fact and, viewing the evidence most strongly in favor 

of the nonmoving party, reasonable minds can reach only one conclusion that is 

adverse to the nonmoving party, entitling the moving party to judgment as a matter 

of law. On a motion for summary judgment, the moving party carries an initial 

burden of identifying specific facts in the record that demonstrate his or her 

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary 

judgment is not appropriate; if the moving party meets this burden, the nonmoving 

party has the reciprocal burden to point to evidence of specific facts in the record 

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. 

Summary judgment is appropriate if the nonmoving party fails to meet this burden. 

Id. 

B. Ohio’s Public Records Act 

R.C. 149.43, Ohio’s Public Records Act, imposes a responsibility on 

public offices and officials throughout Ohio to ensure the public has access to public 

records maintained by those entities. “‘Public record’ means records kept by any 

public office.” R.C. 149.43(A)(1). Unless an exception to disclosure enumerated in 

the Act applies, records maintained by a public office are open and available for 

inspection. Public offices, including the city and its divisions, have a responsibility 

to maintain a system of records that ensures easy public access. R.C. 149.43(B)(2). 
Where a public office or official has failed to provide records in a 

reasonable time, mandamus is one appropriate avenue of relief made available by 

R.C. 149.43(C)(1). State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 

153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15, citing State ex rel. 

Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 

108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. The Public Records Act 

is to be liberally construed so as to ensure broad access to records. Id. 

To prevail on a claim for mandamus relief in a public-records case, the 

relator must establish, by clear and convincing evidence, a clear legal right to the 

requested relief and a corresponding clear legal duty on the part of the respondent 

to provide the relief. State ex rel. Ellis v. Maple Hts. Police Dept., 158 Ohio St.3d 

25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5; State ex rel. Carr v. London Corr. Inst., 

144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 19-20. Clear and convincing 

evidence is “‘that measure or degree of proof * * * which will produce in the mind of 

the trier of facts a firm belief or conviction as to the facts sought to be established.’” 

State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 

1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), 

paragraph three of the syllabus. 

C. Waiver of Attorney-Client Privilege 

1. Disclosure of the Report to Hudson and Joyce 

In the case sub judice, there is no dispute that the documents 

constitute public records or that they are subject to attorney-client privilege. The 
only question is whether GCRTA waived the privilege. Hudson argues that privilege 

was waived both when GCRTA disclosed the report to Joyce and Hudson and 

through GCRTA’s assertion of the Faragher/Ellerth defense. GCRTA contends that 

it was permitted to disclose the report to Joyce and Hudson without destroying 

privilege, and the Faragher/Ellerth defense waiver does not apply because Hudson 

never challenged the sufficiency of the investigation. 

We will begin with the argument that privilege was waived when the 

report was disclosed to Hudson and Joyce. GCRTA contends that it did not waive 

its attorney-client privilege by disclosing the Tucker Ellis report to its high-level 

employees, policy makers, and policy implementers, such as Hudson or Joyce, 

within the course and scope of their employment. GCRTA asserts that the Tucker 

Ellis report contained certain policies and changes that needed to be implemented; 

thus, it is unquestionable that Joyce, as chief, and Hudson, as one of his lieutenants, 

needed to be apprised of the contents of the report. 

Hudson acknowledges that GCRTA had the right to disclose the report 

to “high-ranking individuals” within GCRTA. He further does not dispute that both 

he and Joyce qualify as such people in the organization. His argument is instead 

based upon the reasoning for the disclosure. Hudson asserts that the disclosure was 

made not to GCRTA employees who needed to be aware of the conclusions and 

recommendations of the Tucker Ellis investigation in order to perform their job. 

Rather, Hudson contends that GCRTA decided to disclose the Tucker Ellis report to 

him to “be fair,” rather than any other purpose. 
This court has previously held: 

“The attorney-client privilege bestows upon a client a privilege to refuse 

to disclose and to prevent others from disclosing confidential 

communications made between the attorney and client in the course of 

seeking or rendering legal advice. Thus, the attorney-client privilege 

belongs to the client, and the only materials protected are those which 

involve communications with his attorney.” 

(Emphasis sic.) Miller v. Bassett, 8th Dist. Cuyahoga No. 86938, 2006-Ohio-3590, 

¶ 13, quoting Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio 

App.3d 322, 329, 612 N.E.2d 442 (2d Dist.1992). 

“In Upjohn Co. v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 

S.Ct. 677 (1981), the United States Supreme Court addressed the attorney-client 

privilege as it applies to a corporate client and determined that the attorney-client 

privilege protects and prevents the disclosure of communications between a 

company’s attorney and that company’s employees.” Clapp v. Mueller Elec. Co., 162 

Ohio App.3d 810, 2005-Ohio-4410, 835 N.E.2d 757, ¶ 53 (8th Dist.). 

Further, attorney-client privilege 

extends not only to top executives, officers and agents of the 

corporation, but also to middle-level and lower-level employees of the 

corporation. In order to fall within the attorney-client privilege, the 

communications between the attorney and the corporate employees 

must concern matters within the scope of the employees’ corporate 

duties and the employees need to be aware that the communications 

were for the purpose of obtaining legal advice. 

(Emphasis added.) Jacobs v. Equity Trust Co., 9th Dist. Lorain No. 20CA011621, 

2020-Ohio-6882, ¶ 12, citing Upjohn Co. at 394. 
In the instant matter, the communications sought by Hudson 

certainly concern matters within the scope of his and Joyce’s duties. Joyce, as chief, 

and Hudson, as a lieutenant, were among the higher-level employees that would be 

responsible for implementing the policies and changes recommended by Tucker 

Ellis. In addition, Hudson does not argue that he and Joyce were unaware that the 

communications were for the purpose of legal advice. 

Moreover, contrary to Hudson’s argument, the reasoning behind the 

disclosure does not appear to have any bearing on whether or not the 

communications were privileged. The test is simply whether the communications 

concerned matters within the employee’s duties and that the employee was aware 

the communications were for the purpose of legal advice. See id. The disclosure of 

the report to Joyce and Hudson therefore fell within the parameters of Upjohn Co., 

and attorney-client privilege remained intact. Hudson’s argument that attorneyclient privilege was waived based upon the disclosure of the report to himself and 

Joyce is without merit. 

2. Faragher/Ellerth Defense 

Hudson further contends that any applicable privilege was waived 

when GCRTA asserted the Faragher/Ellerth defense in the EEOC proceedings. This 

defense allows an employer to “‘mitigate or avoid liability by showing (1) that it 

exercised reasonable care to prevent and promptly correct any harassing behavior 

and (2) that the plaintiff unreasonably failed to take advantage of any preventive or 

corrective opportunities that were provided.’” Diemer v. Minute Men, Inc., 2018-
Ohio-1290, 110 N.E.3d 152, ¶ 30 (8th Dist.), quoting Vance v. Ball State Univ., 570 

U.S. 421, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013), citing Faragher v. Boca Raton, 

524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Industries, 

Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). 

Hudson argues that GCRTA’s use of the Faragher/Ellerth defense 

waives any privilege attaching to the investigation of Hudson’s claims. Hudson is 

correct in his assertion that the use of the Faragher/Ellerth defense has been held 

to constitute a waiver of attorney-client privilege; however, this holding has been in 

cases where the defense is actually being asserted in the litigation itself. It has not 

been used in a case such as this, where a writ of mandamus was sought after a publicrecords request was denied. Simply because the entity that is denying the publicrecords request on the grounds of privilege may have raised the Faragher/Ellerth

defense in a prior legal proceeding does not mean that the privilege is waived in all 

other actions. We decline to extend the use of the Faragher/Ellerth defense as 

grounds for waiving privilege to an action for mandamus that is entirely separate 

from any proceeding in which the merits of harassment or discrimination claims are 

being litigated and defended. 

Accordingly, for all of the above reasons, GCRTA has not waived 

privilege and the records sought are excepted from disclosure under Ohio’s Public 

Records Act. Summary judgment was properly granted in favor of GCRTA. 
D. Work-Product Doctrine 

Finally, based upon our determination that attorney-client privilege 

was not waived as to the records sought by Hudson, we need not consider, as an 

alternative basis for summary judgment, GCRTA’s assertion that the records were 

protected by the work-product doctrine. 

III. Conclusion 

GCRTA did not waive attorney-client privilege by disclosing the report 

to Hudson and Joyce. The records sought by Hudson in his public-records request 

were therefore excepted from disclosure under Ohio’s Public Records Act, and the 

trial court properly granted summary judgment in favor of GCRTA. Hudson’s sole 

assignment of error is overruled, and the judgment of the trial court is affirmed. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

____________________________ 

EILEEN T. GALLAGHER, JUDGE 

MARY J. BOYLE, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR