Barrow v. Living Word Dayton, 012221 OHCA2, 28719

Docket Nº28719
Opinion JudgeHALL, J.
Party NameSAMUEL BARROW Plaintiff-Appellant v. LIVING WORD DAYTON, et al. Defendants-Appellees
AttorneyJOHN R. FOLKERTH, Atty. Reg. No. 0016366, Attorney for Plaintiff-Appellant BRYAN J. MAHONEY, Atty. Reg. No. 0071367 and LISA A. HESSE, Atty. Reg. No. 0042120, and J. STEVEN JUSTICE, Atty. Reg. No. 0063719, Attorneys for Defendants-Appellees
Judge PanelTUCKER, P.J, concurs. FROELICH, J., concurs in part and dissents in part.
Case DateJanuary 22, 2021
CourtCourt of Appeals of Ohio

2021-Ohio-141

SAMUEL BARROW Plaintiff-Appellant

v.

LIVING WORD DAYTON, et al. Defendants-Appellees

No. 28719

Court of Appeals of Ohio, Second District, Montgomery

January 22, 2021

Civil Appeal from Common Pleas Court Trial Court Case No. 2017-CV-2301

JOHN R. FOLKERTH, Atty. Reg. No. 0016366, Attorney for Plaintiff-Appellant

BRYAN J. MAHONEY, Atty. Reg. No. 0071367 and LISA A. HESSE, Atty. Reg. No. 0042120, and J. STEVEN JUSTICE, Atty. Reg. No. 0063719, Attorneys for Defendants-Appellees

OPINION

HALL, J.

{¶ 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 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 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 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

{¶ 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 Nakoffv. 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 Enquirerv. 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 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...

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