[Cite as Hudson v. Greater Cleveland Regional Transit Auth.,

.]

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 respondent-

appellee 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.,

,

(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,

,

(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.

.

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

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,

,

,

, citing State ex rel.

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

,

,

. The Public Records Act

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

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.,

,

,

, ¶ 5; State ex rel. Carr v. London Corr. Inst.,

,

,

. 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,

,

,

, quoting Cross v. Ledford,

,

(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,

, quoting Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc.,

,

(2d Dist. 1992).

“In Upjohn Co. v. United States,

,

,

(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.,

,

,

(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,

, 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

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 attorney-

client 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,

(8th Dist.), quoting Vance v. Ball State Univ.,

,

,

(2013), citing Faragher v. Boca Raton,

,

,

(1998); Burlington Industries,

Inc. v. Ellerth,

,

,

(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 public-

records request was denied. Simply because the entity that is denying the public-

records 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