Barrow v. Living Word Dayton

B
[Cite as Barrow v. Living Word Dayton, 2021-Ohio-141.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 SAMUEL BARROW                                       :
                                                     :
         Plaintiff-Appellant                         :   Appellate Case No. 28719
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CV-2301
                                                     :
 LIVING WORD DAYTON, et al.                          :   (Civil Appeal from
                                                     :   Common Pleas Court)
         Defendants-Appellees                        :
                                                     :

                                             ...........

                                             OPINION

                          Rendered on the 22nd day of January, 2021.

                                             ...........

JOHN R. FOLKERTH, Atty. Reg. No. 0016366, 3033 Kettering Boulevard, Point West II,
Suite 111, Dayton, Ohio 45439
       Attorney for Plaintiff-Appellant

BRYAN J. MAHONEY, Atty. Reg. No. 0071367 and LISA A. HESSE, Atty. Reg. No.
0042120, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 and J. STEVEN
JUSTICE, Atty. Reg. No. 0063719, 210 W. Main Street, Troy 45373
     Attorneys for Defendants-Appellees

                                           .............

HALL, J.
                                                                                          -2-




       {¶ 1} Samuel Barrow appeals from an order of the Montgomery County Court of

Common Pleas that requires him and his attorney, jointly and severally, to pay attorney

fees to the defendants as a discovery sanction. We affirm.

                         I. Factual and Procedural Background

       {¶ 2} In May 2017, Barrow, an alleged author and former member of The Living

Word-Dayton church, filed this lawsuit against Living Word, M. Patrick Murray, and Jackie

Murray alleging numerous claims, including tortious interference with a business

relationship, defamation, invasion of privacy, intentional infliction of emotional distress,

and civil conspiracy. We will refer to the defendants collectively as “Living Word.” The

factual allegations underlying Barrow’s claims are not relevant to this appeal. Suffice it to

say that Living Word denies all of Barrow’s claims.

       {¶ 3} This appeal is about a discovery dispute, which began in December 2017

when Living Word filed a motion to compel Barrow to produce emails in their “native

electronic format.” Barrow had identified in his discovery responses 68 witnesses as

having information relevant to his claims and also acknowledged having multiple email

accounts. Living Word proposed that Barrow provide his email accounts and passwords

to its expert, Binary Intelligence, which would download all of his emails and then search

them for the names of the witnesses that Barrow had identified. The responsive emails

would then be reviewed for relevance and the likelihood of leading to the discovery of

admissible evidence. The trial court granted Living Word’s motion to compel and ordered

production of the emails following Living Word’s proposed procedure. Barrow appealed,

and we reversed the order and remanded, concluding that the trial court’s order was
                                                                                        -3-


overbroad and provided no procedures to identify emails that may be covered by the

attorney-client privilege and to protect them against production. See Barrow v. The Living

Word-Dayton, 2d Dist. Montgomery No. 27935, 2018-Ohio-4641.

      {¶ 4} On remand, the parties came to an agreement on a production method that

would protect emails that may be covered by the attorney-client privilege. On December

14, 2018, the trial court entered the agreed discovery order (“Stipulated Confidentiality

and Protective Order and Protocol for Production of Plaintiff Barrow’s Emails”). Under the

order, Binary Intelligence, at Living Word’s expense, would search all of Barrow’s emails

in two stages. The first stage involved a search for the names of the attorneys on a list

provided by Barrow. The responsive emails would be given to Barrow’s counsel who

would review them for privilege. The emails deemed privileged would be listed in a

privilege log, along with certain information specified in the discovery order. The non-

privileged emails would be produced. After the potentially privileged emails were culled,

Binary Intelligence would then search all the remaining emails a second time for any of

the terms on a list provided by Living Word. The list was based on Barrow’s discovery

responses and mostly included the names of the 68 people whom he had identified as

having information relevant to his claims. Living Word provided the list of terms to

Barrow’s counsel, who noted no objection.

      {¶ 5} Living Word had no idea how many emails were in Barrow’s email accounts

or how many emails would be responsive to the searches. The first search, for the

attorney names, produced around 3,200 emails, about 2,700 of which Barrow’s counsel

identified as privileged. The second search, for Living Word’s list of terms, produced over

50,000 emails. The day after Barrow’s counsel received these emails from Binary
                                                                                          -4-


Intelligence, he emailed Living Word’s counsel that the search terms produced too many

emails and that the terms needed to be refined to reduce the volume. Counsel for Living

Word responded the same day and suggested that Barrow could amended his discovery

responses to reduce the number of names and therefore the number of search terms.

Over two weeks later, Barrow’s counsel emailed counsel for Living Word refusing to

amend the discovery responses and insisting that Living Word refine the search terms to

search for only “material” (rather than relevant) discoverable information. Barrow’s

counsel also told Living Word that Barrow refused to review any emails created before

2013, asserting that they could not possibly be relevant. Living Word suggested various

alternatives to deal with the volume of emails, such as extensions of time to conduct the

review and producing emails on a rolling basis, i.e., in batches with set deadlines for

production. Living Word also suggested that Barrow could turn over the emails for it to

review with a claw-back provision should any inadvertent disclosures occur. Barrow’s

counsel did not respond to any of these suggestions.

       {¶ 6} Finally, on March 29, 2019, Living Word filed a motion for sanctions. It

claimed that Barrow (1) refused to provide a sufficiently detailed privilege log as the order

required for claimed attorney-client-privileged emails; (2) refused to provide any emails

created before 2013; (3) refused to review the emails responsive to the second search;

(4) refused to produce any the second-search emails; and (5) failed to respond to

reasonable alternatives suggested by Living Word to informally resolve the dispute. A

hearing was held in May 2019. Barrow admitted that he had not reviewed any of the

50,000 emails. He said that he had glanced at the list and concluded that it was

overwhelming. He repeatedly asserted that the search was not a real search: “I don’t think
                                                                                            -5-


they really did a search.” (Tr. 58.) Barrow said that “the search terms have been

constructed in a way so as to not actually constitute a legitimate basis for search.” (Id. at

42.) Further, he stated, “I’ve been more than willing to comply if it was a real search.” (Id.

at 59.) With respect to pre-2013 emails in particular, Barrow was asked why he refused

to review them. He responded, “I did not even * * * know the defendant during that time

and it wasn’t relevant to this particular action at all.” (Id. at 55.) Living Word explained to

the trial court that pre-2013 emails could be relevant for two reasons: one, it had asserted

a counterclaim for vexatious litigation that spanned a period of 20 years; and two, Barrow

was allegedly developing his skill as a “world class author,” was involved with the Living

Word church, and was communicating with the witnesses identified in his discovery

responses as early as 2010.

       {¶ 7} On June 19, 2019, the trial court sustained Living Word’s motion for

sanctions. The court found Barrow, individually,1 in contempt for willfully failing to comply

with the December 2018 agreed discovery order. Further, the court determined that the

failure to comply “was not substantially justified and an award of attorney fees is just.”

The following August, a hearing was held on the amount of the attorney fees. On January

27, 2020, the trial court ordered Barrow and his counsel, jointly and severally, to pay

Living Word attorney fees of $11,835.

       {¶ 8} Barrow appeals.

                                         II. Analysis



1 “This Court finds that Plaintiff Mr. Barrow has willfully failed to comply with the Court’s
Order of December 14, 2018. * * * This Court concludes that Plaintiff’s failure to abide by
the December 14, 2018 Order to which he agreed is in fact contemptable.” Decision, Entry
and Order, June 19, 2019.
                                                                                           -6-


       {¶ 9} Barrow raises three assignments of error, which challenge the finding that he

failed to comply with the discovery order, the finding of contempt and awarding of

sanctions, and the award of attorney fees.

       {¶ 10} “Our review of a trial court’s order granting sanctions for failing to comply

with the discovery rules is based on an abuse-of-discretion standard. A trial court has

broad discretion to fashion an appropriate sanction for a party’s failure to comply with the

discovery rules.” Yellowbook, Inc. v. L. Patrick Mulligan & Assocs., 2d Dist. Montgomery

No. 26090, 2014-Ohio-4698, ¶ 7, citing Nakoff v. Grandview Gen. Hosp.l, 

75 Ohio St. 3d 254

, 

662 N.E.2d 1

(1996), syllabus. “This is a ‘highly deferential standard of review,’ and

‘we will not lightly substitute our interpretation for that of the issuing court.’ ” Barton v.

Barton, 2017-Ohio-980, 

86 N.E.3d 937

, ¶ 98 (2d Dist.), citing State ex rel. Cincinnati

Enquirer v. Hunter, 

138 Ohio St. 3d 51

, 2013-Ohio-5614, 

3 N.E.3d 179

, ¶ 29.

                         A. Failure to obey the discovery order

       {¶ 11} The first assignment of error alleges:

       THE TRIAL COURT ERRED BY FINDING THAT MR. BARROW FAILED

       TO COMPLY WITH THE COURT’S PROTECTIVE ORDER.

       {¶ 12} The record shows that the trial court had good reason to find that Barrow

failed to obey the discovery order. The scope of the discovery order encompassed all

emails that contained at least one of the search terms on the list supplied by Living Word.

Barrow admitted that he had refused to review any emails created before 2013. He further

admitted that he had refused to review any of the search-term emails.

       {¶ 13} Barrow plainly failed to comply with the court’s discovery order. The order

did not give Barrow discretion as to which emails to review. If he thought that compliance
                                                                                          -7-


would be an undue burden or expense, he should have brought that to the trial court’s

attention. Instead, Barrow simply disregarded what the order required him do.

       {¶ 14} The first assignment of error is overruled.

                               B. Contempt and sanctions

       {¶ 15} The second assignment of error alleges:

       THE TRIAL COURT ERRED BY AWARDING SANCTIONS AGAINST MR.

       BARROW AND HIS COUNSEL.

       {¶ 16} Civ.R. 37(B)(1)(g) states that, if a party fails to obey a discovery order, the

court may issue an order treating the failure to obey as contempt of court. And Civ.R.

37(B)(3) requires the court to order payment of attorney fees “unless the failure was

substantially justified or other circumstances make an award of expenses unjust.” See

Action Group, Inc. v. NanoStatics Corp., 10th Dist. Franklin No. 13AP-72, 2013-Ohio-

5542, ¶ 68 (stating that “a court is generally required to order the party who fails to obey

a discovery order to pay the opposing party’s reasonable expenses, including attorney

fees,” the only exceptions being “if the court finds that the uncooperative party’s actions

are substantially justified or other circumstances make the award unjust”). Absent one of

these exceptions, “[w]hen noncompliance with the discovery rules is established, a court

abuses its discretion when it fails to award attorney fees.” Yellowbook, 2d Dist.

Montgomery No. 26090, 2014-Ohio-4698, at ¶ 8, citing Mays v. Dunaway, 2d Dist.

Montgomery No. 19922, 2003-Ohio-6900.

       {¶ 17} Here, in its June 19, 2019 decision, the trial court found that Barrow had

“willfully failed to comply” with the discovery order and that the failure to comply with the

order to which Barrow had agreed was “contemptable.” The trial court further found that
                                                                                          -8-


the failure to comply was not substantially justified and that an award of attorney fees was

just.

        {¶ 18} The record amply supports these findings. Living Word first sought Barrow’s

discoverable emails in 2017. Finally, a year later, the parties agreed to a discovery

procedure for them. Barrow knew how many emails he had; Living Word had no idea.

When Barrow learned how much work would be required, he simply refused to follow the

procedure—the procedure he had agreed to. But he did not say anything to the trial court

about it until Living Word filed its motion for sanctions, which was over a year after Living

Word had first sought the emails. Barrow did not object to Living Word’s list of search

terms. And when he learned just how many emails he would have to review, he did not

ask the court to modify the discovery order. Moreover, Barrow did not respond to Living

Word’s suggestions of alternative ways to comply or offer his own suggestions.

        {¶ 19} The discovery order did not give Barrow the option to review only a portion

of his emails. “[I]n disobeying a court order, he took the risk that the court would disagree

with his choice.” Passage v. Passage, 2d Dist. Greene No. 2013-DR-190, 2016-Ohio-

1097, ¶ 21. As we have already said, if Barrow thought that compliance would be an

undue burden or expense, and that Living Word’s suggested alternatives were

unworkable, he should have brought the matter to the trial court. “What he could not do

was to unilaterally disregard the prior court order.”

Id. at ¶ 23.

        {¶ 20} As for the trial court’s decision to make Barrow’s counsel jointly and

severally liable for attorney fees, despite the fact that the contempt finding did not extend

to Barrow’s attorney, Civ.R. 37(B)(3) gives courts the authority to sanction an attorney for

a failure to comply with a discovery order. It states: “Payment of Expenses. Instead of or
                                                                                          -9-


in addition to the orders above, the court shall order the disobedient party, the attorney

advising that party, or both to pay the reasonable expenses, including attorney's fees,

caused by the failure, unless the failure was substantially justified or other circumstances

make an award of expenses unjust.” As the Tenth District has said, “Civ.R. 37 vests courts

with the authority to sanction parties and their attorneys for flouting the Rules of Civil

Procedure and violating discovery orders, and * * * joint and several liability is one method

by which a court may impose sanctions.” Bellamy v. Montgomery, 

188 Ohio App. 3d 76

,

2010-Ohio-2724, 

934 N.E.2d 403

, ¶ 21 (10th Dist.). Here, the trial court noted in its

January 27, 2020 decision that it had found Barrow in contempt for failing to comply with

the discovery order. In addition, the court pointed out that Barrow’s counsel “continues to

fuel the fire by arguing in his post hearing brief that ‘The transparent motive of the Living

Word Defendants to conduct this quest for sanctions is to maneuver Mr. Barrow into

sanctions, with the ultimate objective of obtaining the dismissal of Mr. Barrow’s lawsuit

other than on the merits.’ ” The court also noted that counsel called Living Word’s conduct

“ ‘tactics’ that are ‘disingenuous and a pretext to seek sanctions.’ ” The court found it

“especially egregious” that counsel still blamed Living Word for Barrow’s conduct, which

the court had already found was contemptable. While the court expressed reluctance to

impose joint and several liability on counsel, it said that “Barrow’s statements are in fact

fueled by his counsel’s continued effort to blame Defendants for Plaintiffs failure to abide

by a Court Order.”

       {¶ 21} We cannot say that the trial court abused its discretion by imposing

sanctions jointly and severally on both Barrow and his counsel.

       {¶ 22} The second assignment of error is overruled.
                                                                                    -10-


                                C. Award of attorney fees

      {¶ 23} The third assignment of error alleges:

      THE TRIAL COURT’S AWARD OF SANCTIONS IS UNJUST AND

      EXCESSIVE.

      {¶ 24} “The trial court must determine, as a factual finding, an amount that will

reasonably compensate the moving party for its reasonable expenses in pursuing a

justifiable order of sanctions.” Yellowbook, 2d Dist. Montgomery No. 26090, 2014-Ohio-

4698, ¶ 10, citing Bellamy, 

188 Ohio App. 3d 76

, 2010-Ohio-2724, 934 N.E.2d. 403.

      {¶ 25} Here, the trial court awarded Living Word $11,835 in attorney fees “based

upon the evidence presented.” At the hearing on attorney fees, Living Word presented

expert testimony and exhibits supporting the reasonableness of the fees awarded. Upon

review, we conclude that the amount of the award is well-supported by the evidence and

was not an abuse of discretion. See Barton, 2017-Ohio-980, 

86 N.E.3d 937

, at ¶ 99

(concluding that the contempt finding and award of reasonable fees were well-supported

by the evidence and were not an abuse of discretion where expert testimony as the

reasonableness of the fees incurred was presented).

      {¶ 26} The third assignment of error is overruled.

                                     III. Conclusion

      {¶ 27} We have overruled each of the assignments of error presented. The trial

court’s judgment is affirmed.

                                     .............



TUCKER, P.J., concurs.
                                                                                         -11-




FROELICH, J., concurs in part and dissents in part:

       {¶ 28} I concur in the affirmance of the finding of contempt against Barrow and the

award and amount of attorney fees. I disagree with the trial court’s judgment of joint and

several liability concerning his attorney.

       {¶ 29} “Civ.R. 37 vests courts with the authority to sanction parties and their

attorneys for flouting the Rules of Civil Procedure and violating discovery orders[;] * * *

joint and several liability is one method by which a court may impose sanctions.”

Bellamy, 

188 Ohio App. 3d 76

, 2010-Ohio-2724, 

934 N.E.2d 403

, ¶ 21 [Bellamy I].

       {¶ 30} In Bellamy I, the Tenth District reviewed the imposition of sanctions against

a law firm, pursuant to Civ.R. 37. Recognizing “how attorney-client relationships may

sometimes break down,” the Tenth District has stated that “ ‘[i]t is fair to hold individuals

accountable for their own conduct. A lawyer cannot always control the actions of a client,

and it would be unfair to hold the lawyer accountable for them, unless it appeared that he

or she had some responsibility for the client’s recalcitrance.’ ”

Id., quoting Inter-Trade, Inc.

v. CNPQ-Conselho Nacional De Desenvolvimento Cientifico E Tecnologico, 

761 A.2d 834

, 839 (D.C.2000). The Tenth District continued:

              Keeping all practical, legal, and public-policy considerations in mind,

       the fact patterns of the federal cases that have imposed joint and several

       liability for sanctions have generally involved egregious conduct by

       attorneys. The imposition of joint and several liability can translate to being

       a harsh sanction but, if warranted, a wholly appropriate sanction. Thus,

       given the fact patterns reviewed by this court, it is our position that a trial
                                                                                          -12-


       court must support the imposition of joint and several liability with detailed

       findings and analysis, which includes an apportionment of responsibility.

Id. at ¶ 22.

The appellate court reversed the award of sanctions and remanded the case

to the trial court for more complete findings as to the law firm’s level of responsibility, if

any, for the failure to produce the requested documents. After a hearing, the trial court

assigned 25 percent of the responsibility to the law firm.

       {¶ 31} Reviewing the law firm’s appeal of the trial court’s decision after remand,

the Tenth District again reversed the award of sanctions against the law firm.              It

reasoned:

              In Inter-Trade, which this court relied upon in Bellamy I, the District

       of Columbia Court of Appeals reversed an award of sanctions against an

       attorney that was based upon the client’s failure to attend a deposition.

       The court held that the client’s failure, in and of itself, did not give rise to

       sanctions against the attorney. Rather, the court held that attorneys should

       be held accountable only for their own conduct. The court agreed that

       “ ‘ “an award ought to be made against the attorney only when it is clear that

       discovery was unjustifiably opposed principally at his instigation.” ’ ” Inter-

       Trade at 840, quoting Crawford v. Am. Fedn. Of Govt. Emps., 

576 F. Supp. 812

, 815 (D.D.C.1983), quoting Humphreys Exterminating Co., Inc. v.

       Poulter, 

62 F.R.D. 392

(D.Md.1974). * * * In Inter-Trade, the district court

       was not entitled to sanction counsel because it did not know whether the

       client had consulted with counsel in forming his position regarding

       attendance at his deposition.
                                                                                    -13-


       “Rule 37 treats the client and his attorney separately.” Weisberg [v.

Webster, 749 F.2d [864,] 874 [(D.C.Cir.1984)]. “[A]n award of costs under

Rule 37 against an attorney ought to be justified by reasons distinct from

those justifying an award against the client.”

Id., citing Crawford. Accordingly,

neither a party’s failure to comply with a discovery order nor

the trial court’s reasoning for imposing sanctions upon the party is sufficient

to justify sanctions against the party’s attorney.      Rather, separate and

distinct reasons must support sanctions against the attorney, and the court

must explain those reasons. In Weisberg at 874, the D.C. Circuit explained

that “[t]his requirement of findings to support an award of expenses against

an attorney is prompted by the structure of Rule 37, by concerns for

effective appellate review, and by concerns for the tension created in the

attorney-client relationship when the attorney is subject to personal liability.”

       Addressing language in R.C. 2323.51 that is substantially similar to

the language in Civ.R. 37(B)(2), this court has stated that, “in allowing for

the imposition of sanctions against the client, counsel, or both, [R.C.

2323.51] provides a mechanism for the court to place the blame directly

where the fault lies.” Estep v. Kasparian, 

79 Ohio App. 3d 313

, 317, 

607 N.E.2d 109

(10th Dist.1992). The same reasoning applies to sanctions

under Civ.R. 37(B)(2) and is consistent with the federal case law requiring

highly culpable conduct by an attorney before a court may require the

attorney to pay expenses. Therefore, we agree with Cooper & Elliott that

a client’s failure to comply with discovery orders is not, by itself, an
                                                                                        -14-


      appropriate basis for ordering the attorney to pay expenses pursuant to

      Civ.R. 37(B)(2).

Bellamy v. Montgomery, 10th Dist. Franklin No. 11AP-1059, 2012-Ohio-4304, ¶ 12-14

(Bellamy II). The Tenth District concluded that the trial court applied the wrong legal

standard when it awarded sanctions based on the firm’s failure to ensure its client’s

compliance with the discovery order.

Id. at ¶ 10.

Applying the correct legal standard,

the Tenth District found “no support for a finding that Cooper & Elliott engaged in highly

culpable conduct that amounted to condonance of or participation in Bellamy's

noncompliance with the trial court's discovery orders.”

Id. at ¶ 30.

      {¶ 32} In this case, counsel was never put on notice, either in the motion for

sanctions or at the hearing, that the trial court was considering sanctions against him

personally. Contrast Bellamy I, 

188 Ohio App. 3d 76

, 2010-Ohio-2724, 

934 N.E.2d 403

,

at ¶ 6 (the trial court ordered an evidentiary hearing on the amount of expenses and “level

of responsibility for them of Plaintiff and his counsel”). Moreover, the trial court found

from the evidence that it was Barrow who had willfully failed to comply and that Barrow

had refused to provide a log, refused to provide any pre-2013 emails, refused to review

certain emails, refused to produce certain emails, and failed to respond to informal

alternatives suggested by Living Word. There was no testimony that any of this was

done at the attorney’s direction or suggestion, as opposed to perhaps acting against his

attorney’s advice.

      {¶ 33} Courts must also be mindful of the chilling effect that applying a sanction –

even if permitted by a Rule – can have on forceful and diligent advocacy. See Internatl.

Union of Operating Engineers, Local 18 v. Laborers' Internatl. Union of N. America, Local
                                                                                      -15-


310, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 25 (addressing a motion for

attorney fees under Civ.R. 11.)

      {¶ 34} I find nothing in the record to support a determination of “highly culpable

conduct by the attorney that amounted to condonance or participation in a client’s

disobedience of a discovery order.” See Bellamy II at ¶ 30. I would remand for the court

to hear additional evidence and apply the correct legal standard concerning the attorney.




Copies sent to:

John R. Folkerth
Bryan J. Mahoney
Lisa A. Hesse
J. Steven Justice
Kevin A. Bowman
Hon. Richard Skelton

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