In the case of Evans v. Gardner, 2023-Ohio-558, an appellate court held that attorney-client privilege did not apply when an attorney, who represented the non-party business and business’s president, inadvertently sent an email, sent by the president, for in camera review that the business claimed was protected by the attorney-client privilege.
In this case, the president argued that (1) Ohio law protects inadvertently produced privileged documents from discovery; (2) the trial court granted a protective order of the business’s privilege log that precluded the email from discovery; and (3) Ohio law allows a party to protect a nonparty’s privileged document from being produced in discovery. In response, the receiver argued that (1) the trial court had previously ruled that the president had waived the attorney-client privilege for communications between the association and its attorney and the business and its attorneys; (2) the protective order was applied because the documents from the non-party business could be obtained through a party and the trial court had not reviewed this specific email; and (3) the president had already produced the first two emails from the chain and the business would have to produce the email as well due to a subpoena. The appellate court agreed with the receiver.
In support of its decision in favor of the receiver, the appellate court explained that the email was a communication with the association and its attorney during the time frame the attorney-client privilege had been waived. The appellate court further explained that the president had already produced the first two emails in the chain but did not give any explanation as to why this third email is not discoverable.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.