In the camp of be careful how you plead and intend to prove a claim, those asserting an Ohio Dormant Mineral Act (ODMA) claim should pay careful attention to their pleading so as not to waive the attorney-client or attorney work product privileges. As the plaintiffs in Riccardi v. Jackson found out, waiver is a real possibility.
Monroe County ODMA claim
The complaint at issue sought a declaration that the previously-severed oil and gas rights had been abandoned. To support that claim, the plaintiff alleged, among other things:
- they hired a lawyer to determine whether any Savings Events under the ODMA occurred and whether service of the Notice of Abandonment by certified mail was possible;
- the lawyer conducted a search for records in Monroe County, Ohio;
- the attorney failed to find names/addresses of the severed interest holder;
- plaintiffs had no information from the attorney’s search that would require them to look beyond Monroe County; and
- the search conducted by the attorney was consistent with the baseline of reasonable diligence in identifying the holder or holders of the severed mineral interest.
Finally, the plaintiffs actually attached some of the attorney’s notes to their complaint.
In discovery, the defendant served a subpoena on the attorney who had been hired to do the search, seeking pretty much all documents related to that work, including “all Documents and Communications related to the Title Search You conducted with respect to the Premises, including but not limited to file notes, correspondence, memoranda, and e-mails.”
Plaintiffs moved to quash the subpoena on the grounds that (i) they did not receive notice of subpoena until after it had been served and (ii) it improperly sought information protected by the attorney-client privilege. After full briefing, the Court denied the motion.
As to the notice issue, the Court stated that advance notice is required by Rule 45, but the purpose of it is to allow the other party to object. Here, the plaintiff did object and the Court stayed the subpoena response deadline until after that objection was resolved. As such, there was no prejudice and the first ground was rejected.
Attorney-client privilege protection waived
As to the privilege issue, the Court determined the plaintiffs waived any protection afforded by the attorney-client privilege (they did not raise the objection as to work product privilege) relating to their former counsel’s research and due diligence under the ODMA. While noting the attorney-client privilege is the oldest privilege and serves a necessary purpose, the Court evaluated the situation under Rule of Evidence 502 and determined the plaintiffs’ conduct waived the privilege as to the entire subject matter. But, the Court expressly noted that simply retaining a lawyer to seek an ODMA action was not the waiver; it was the extensive and express reliance on that lawyer’s work in the Complaint that created the waiver.
The Court appreciates the significance of the attorney-client privilege and does not make this decision lightly. To be clear, while the Court agrees with Plaintiffs that “[t]he decision to retain professional legal services in connection with the pursuit of a statutory remedy, alone, does not constitute a waiver with respect to otherwise privileged communications,” that is not the basis of Plaintiffs’ waiver in this case. (See ECF No. 30 at PAGEID # 222.) Rather, Plaintiffs waived their privilege by: affirmatively alleging that they hired Attorney Yoss to perform the search; affirmatively alleging that the search was consistent with the “baseline of reasonable diligence” standard set by the Supreme Court of Ohio; affirmatively alleging that they “did not have any independent knowledge or information revealed by Attorney Yoss’ search that would require them to continue looking elsewhere”; and affirmatively attaching Attorney Yoss’ notes to the Complaint. (See ECF No. 1 at PAGEID ## 4-5.)
ODMA claim discovery considerations
So, if you are contemplating an ODMA action in Ohio, be sure to consider the fact that whoever does the underlying due diligence, due to pleading and proof issues, is likely going to be required to provide discovery and testimony. As the attorney-client privilege and/or work product doctrine may not be applicable, consider whether it may be better to use a title searcher or other non-attorney to conduct the research, or to use a different attorney to conduct the research from the one pressing the claim in court. Alternatively, if you are facing an ODMA action in Ohio, be sure to consider all potential sources of discoverable information.