# Abington Emerson Capital, LLC v. Adkins

> District Court, S.D. Ohio · August 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10376124

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ABINGTON EMERSON CAPITAL, LLC,

Plaintiff,

Civil Action 2:17-cv-143
v. Judge Sarah D. Morrison
Magistrate Judge Jolson
L ANDASH CORPORATION, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendant XPO Global Forwarding, Inc.’s and
Defendant XPO Logistics, Inc.’s (collectively, “XPO”) Motion to Permanently Seal (Doc. 379).
For the following reasons, XPO’s Motion is GRANTED, and the Clerk is DIRECTED to
permanently seal Document 378, as well as the attached exhibits, Documents 378-1 and 378-2.
I. BACKGROUND
On August 7, 2020, the Court granted Plaintiff Abington Emerson Capital, LLC’s
(“Abington”) Motion for Leave to File its Reply in Support of Motion in Limine No. 1 Temporarily
under Seal. (Doc. 377). The Court temporarily sealed the documents and directed the parties to
file any motion to permanently seal within fourteen days. (Id.). XPO timely moved to permanently
seal on the basis of the common interest doctrine. (Docs. 379). XPO’s Motion is unopposed. (See
id. at 1 n.2). Thus, this matter is ripe for resolution.

II. STANDARD
A district court may enter a protective order during discovery on a mere showing of “good
cause.” Fed. R. Civ. P. 26(c)(1). “[V]ery different considerations apply” when a party seeks to
seal documents “[a]t the adjudication stage,” which applies “when the parties place material in the
court record.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.
2016) (quotation omitted). “Unlike information merely exchanged between the parties, ‘[t]he

public has a strong interest in obtaining the information contained in the court record.’” Id.
(quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)). For
this reason, the moving party bears a “heavy” burden of overcoming a “‘strong presumption in
favor of openness’ as to court records.” Shane Grp., Inc., 825 F.3d at 305 (quoting Brown &
Williamson, 710 F.2d at 1179). “[T]he seal itself must be narrowly tailored to serve that reason,”
which requires the moving party to “analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations.” Shane Grp., Inc., 825 F.3d at 305–06 (quotation
marks and citation omitted). Similarly, the court “that chooses to seal court records must set forth
specific findings and conclusions which justify nondisclosure.” Id. at 306 (quotation marks and

citation omitted).
III. DISCUSSION
As noted, XPO seeks to permanently seal documents that Abington cites in its reply brief
in support of its first Motion in Limine. (See generally Doc. 379). XPO contends that these
documents, consisting of counsel’s email communications and references to the same, are
protected under the common interest doctrine. (See generally id.). By way of background, “[i]n
2017, on the precipice of this litigation, XPO’s in house and outside counsel communicated with
Timothy Parlatore, former counsel for Defendant Jason Adkins.” (Id. at 1). As Abington had sued
both XPO and Adkins, the two had a common interest at that time in defending against the
litigation. (Id.). So XPO “initially withheld email communications” between its counsel and
counsel for Defendant Adkins as privileged under the common interest doctrine. (Id. at 2).
Abington subsequently moved to compel these documents, and, thereafter, numerous discovery
disputes unfolded. (Id. (citing Doc. 300)). The Court encouraged the parties to work together to
resolve these disputes extrajudicially, and, “[u]ltimately, Abington and XPO entered into an

omnibus resolution to dispose of several discovery motions filed by the parties, including
[Abington’s] [Motion to Compel].” (Doc. 379 at 2). As part of that compromise, XPO agreed to
produce to Abington the documents it previously withheld under the common interest privilege,
and in exchange, Abington produced its own set of purportedly privileged documents. (Id. (citing
Doc. 313)).
Relevant here, as part of their deal, the parties jointly requested “an order that the
production of the subject documents, as described in their Motion, does not constitute a waiver of
any applicable privilege or protection in this litigation or any other state or federal litigation.”
(Doc. 313). The Undersigned granted that request, and ordered, “[p]ursuant to Rule 502(d) of the

Federal Rules of Civil Procedure, the production of the documents described in the Motion . . .
shall not constitute a waiver of any claim of privilege or work product protection in this case or
any other state or federal litigation.” (Doc. 314 at 1–2).
Now, in briefing its Motion in Limine, Abington relies on a handful of email
communications between XPO’s counsel and Defendant Adkins’ former counsel. (See Docs. 375,
375-1, 375-2). As noted, XPO previously withheld these documents under the common interest
doctrine and later produced them as part of the parties’ compromise. In seeking to permanently
seal the documents, XPO asserts they “are unquestionably privileged, as they show discussions
regarding counsel’s mental impressions and litigation strategy.” (Doc. 379 at 1). It further
contends that it “has a strong interest in maintaining the privileged nature of” these documents,
and, because they are privileged, the “public initially had no right to view [them].” (Doc. 379 at
3). It recognizes that privilege could potentially have been waived when it produced the documents
to Abington but notes that it did so only as part of its deal with XPO and “subject to this Court’s
order expressly holding that the privileged nature of these documents was not waived.” (Id. (citing

Doc. 314)). XPO further avers that “publicizing documents would undermine the public interest
by eroding the sanctity of the privilege, as well as discourage parties from negotiating discovery
disputes for fear of later losing the privilege.” (Doc. 379 at 4).
The Court finds that permanently sealing the documents at issue is appropriate here.
“Courts within this [C]ircuit have found [] a compelling reason [to file documents under seal]
where documents implicate the privacy rights of participants or third parties.” Munson Hardisty,
LLC v. Legacy Pointe Apartments, LLC, No. 3:15-CV-547-TAV-CCS, 2017 WL 2350174, at *2
(E.D. Tenn. May 30, 2017) (quotation marks omitted) (citing In re Se. Milk Antitrust Litig., 666 F.
Supp. 2d 908, 915 (E.D. Tenn. 2009)). And “[d]ocuments invoking either work-product or

attorney-client privilege implicate such privacy rights, and therefore, provide grounds . . . to file
the documents under seal.” Munson Hardisty, 2017 WL 2350174, at *2 (citation omitted); see
also Shane Grp., 825 F.3d at 308 (alteration in original) (quotation marks and citations omitted)
(noting that, “[i]n civil litigation, only trade secrets, information covered by a recognized privilege
(such as the attorney-client privilege), and information required by statute to be maintained in
confidence . . . is typically enough to overcome the presumption of access”).
Upon in camera review, the Court confirms that the documents at issue fall within this
narrow category and should be sealed. As XPO asserts, and Abington does not contest, the exhibits
at issue consist of email communications between counsel for XPO and former counsel for
Defendant Jason Adkins, made pursuant to XPO’s and Defendant Adkins’ common interest in
defending against this litigation. Travelers Cas. & Sur. Co. v. Excess Ins. Co., 197 F.R.D. 601,
606 (S.D. Ohio 2000) (alteration in original) (quotation marks and citation omitted) (noting that
the purpose of the common interest doctrine “is to protect the free flow of information from the
client to [the] attorney when a number of clients share a common interest in litigation” and “when

the parties have a common litigation opponent, or when information is exchanged between friendly
litigants with similar interests”). Moreover, the request is narrowly tailored, as Abington filed a
redacted version of its brief on the public docket. See Shane Grp., 825 F.3d at 305 (“[E]ven where
a party can show a compelling reason why certain documents or portions thereof should be sealed,
the seal itself must be narrowly tailored to serve that reason.”).
Additionally, the Court agrees with XPO that the interests of justice outweigh the public’s
interest in accessing these records. The parties, pursuant to the Undersigned’s directive, worked
diligently to resolve numerous discovery disputes that would have otherwise resulted in costly and
time-consuming briefing. They ultimately reached a deal and produced the documents at issue.

And the Court ordered that, in doing so, the parties did not waive any privilege. As such, unsealing
these communications could potentially deter parties from entering similar discovery resolutions.
Finally, and perhaps most importantly, unlike the parties’ previous requests to permanently
seal, (see Docs. 346, 347), the documents at issue reveal substantive communications between
XPO’s counsel and Defendant Adkins’ former lawyer about trial strategy. See, e.g., Travelers
Cas. and Sur. Co., 197 F.R.D. at 607 (recognizing as privileged, communications made pursuant
to the common interest privilege where they reflected “shared interests sufficiently common or
joint to create a need for full and frank communication between and among counsel and their
clients,” as well as a “shared [] expectation that their communications between themselves and
their counsel would be maintained in confidence”). The public’s interest in accessing these two
exhibits or Abington’s unredacted brief does not justify unsealing these records to reveal counsel’s
communications made pursuant to their clients’ common interest. In sum, XPO has met its burden
to permanently seal Abington’s unredacted reply brief and supporting exhibits.
IV. CONCLUSION

For the foregoing reasons, XPO’s Motion to Permanently Seal (Doc. 379) is GRANTED,
and the Clerk is DIRECTED to permanently seal Document 378 and the attached exhibits,
Documents 378-1 and 378-2.
IT IS SO ORDERED.

Date: August 26, 2020 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376124. Public record. Not legal advice.