Wallace

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHONDA WALLACE, : Case No. 3:24-cv-304

:

Plaintiff, :

:

District Judge Michael J. Newman

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

ROCKING HORSE CHILDREN’S :

HEALTH CENTER D/B/A ROCKING :

HORSE COMMUNITY HEALTH :

CENTER, et al. :

:

Defendants. :

ORDER

This matter is before the court upon Plaintiff Shonda Wallace’s Motion to Compel

Discovery (Doc. #21), Defendant Rocking Horse Children’s Health Center’s (“Defendant” or

“Rocking Horse”) Brief in Opposition (Doc. #23), and Plaintiff’s Reply Memorandum in Support

of Her Motion (Doc. #25).

I. Background

Plaintiff commenced this action on November 26, 2024, against Defendant, pursuant to 28

U.S.C. § 1331. (Doc. #1); (Doc. #15, PageID #125). Plaintiff alleges that she was wrongfully

terminated by Defendant in violation of federal and state law. (Doc. #15, PageID #s 130–39). Both

parties met with the undersigned for a status conference on September 26, 2025. (Doc. #20).

During the status conference, Defendant was ordered to provide an updated privilege log. Id.

Defendant provided the updated privilege log to Plaintiff on October 7, 2025. (Doc. #23-1, PageID

#316). Thereafter, Plaintiff filed a motion to compel discovery on October 21, 2025. (Doc. #21).

Plaintiff seeks discovery of certain documents relevant to her termination at Rocking

Horse. Id. at 173–75. Prior to her termination, Plaintiff served as the Chief Financial Officer

(“CFO”) of Rocking Horse. Id. at 173. Beginning in early 2024, Plaintiff began experiencing

health complications and ultimately requested leave pursuant to the Family and Medical Leave

Act (“FMLA”). Id. at 173–74. On October 14, 2025, Plaintiff met with Rocking Horse executives

and was informed that she was being placed on administrative leave. Id. at 174. On October 25,

2025, Defendant allegedly stopped paying Plaintiff; and she was subsequently terminated. (Doc.

#15, PageID #130).

Throughout this time––that is, before, during, and after Plaintiff’s termination––various

communications and documents were produced between Rocking Horse and its counsel. See (Doc.

#23-1). These included numerous email communications, Executive Committee Notes, Personnel

Committee Notes, and a Draft Separation Agreement. Id. at 317–20. As identified in their privilege

log, Defendant claims that all of these communications and documents are protected from

discovery because of attorney-client privilege or work product doctrine. See id.

More specifically, Defendant argues that all of its email communications––over 70 pages

worth––are protected as “direct communications with counsel that clearly fall within the scope of

attorney-client privilege.” (Doc. #23, PageID #265–66). Further, Defendant asserts that the

documents relating to the Draft Separation Agreement “were prepared by an attorney and

constitute attorney work product” and therefore “there is no basis for their production.” Id. at 266.

Defendant maintains that the Executive Committee Notes and Personnel Committee Notes are

protected by attorney-client privilege because these committee meetings were not mere business

meetings; rather, they were held at the request of counsel where “legal advice was central, not

incidental, to the ultimate outcome.” Id. at 268.

Plaintiff, on the other hand, vehemently contests these arguments. See Doc. #25. Plaintiff

argues that Defendant’s updated privilege log remains deficient and that Defendant is improperly

withholding relevant documents under the auspices of attorney-client privilege and the work

product doctrine. Id. at 324. Put simply, Plaintiff states that Defendant is “preventing Ms. Wallace

from accessing information necessary to litigate her case.” Id. Accordingly, Plaintiff requests the

Court to compel discovery of the alleged improperly withheld documents; or, in the alternative, to

conduct an in camera review of these documents. Id. at 329.

II. Standard of Review

The Federal Rules of Civil Procedure provide that parties “may obtain discovery regarding

any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the

needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). If the opposing party fails to produce requested

discovery documents, a party may file a motion to compel. Fed. R. Civ. P. 37(a)(1). The non-

moving party may protect documents from discovery by asserting that the requested documents

are subject to attorney-client privilege or were prepared in anticipation of litigation. See Fed. R.

Civ. P. 26(b)(3); Fed. R. Civ. P. 26(b)(5). However, “[t]he burden of establishing the existence of

the privilege rests with the [party] asserting it.” United States v. Dakota, 188 F.3d 663, 667 (6th

Cir. 1999); see also United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006) (“A party

asserting the work product privilege bears the burden of establishing that the documents he or she

seeks to protect were prepared ‘in anticipation of litigation.’” (quoting In re Powerhouse

Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006)).

“Because this case is before the Court on federal question jurisdiction, federal law governs

questions regarding the attorney-client privilege or work product protection.” Cherly & Co. v.

Krueger, No. 2:18-cv-1485, 2019 U.S. Dist. LEXIS 208875, at *5 (S.D. Ohio Dec. 4, 2019) (citing

Talismanic Properties, LLC v. Tipp City, Ohio, 309 F. Supp. 3d 488, 493 (S.D. Ohio 2017)); see

also Watson v. Ohio Ambulance Sols., LLC, No. 1:20-cv-802, 2021 U.S. Dist. LEXIS 271514, at

*7 (S.D. Ohio Nov. 23, 2021) (citing Shahbabian v. Trihealth, Inc., No. 1:18-cv-790, 2019 U.S.

Dist. LEXIS 174180, at *5 (S.D. Ohio Oct. 8, 2019)) (the court applies federal law to the rules

governing attorney-client privilege despite any supplemental state law claims). Relevant to the

instant motion are the legal standards governing privilege logs, attorney-client privilege, and the

work product doctrine.

A. Privilege Logs

Under the Federal Rules of Civil Procedure, when a party claims that communications or

documents are protected from discovery due to attorney-client privilege or the work product

doctrine, that party must describe the nature of the documents or communications to the extent that

it “enable[s] other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5). This has been interpreted

to require the party asserting the protection to produce a privilege log. See, e.g., Mafcote, Inc. v.

Fed. Ins. Co., No. 3:08-CV-11-S, 2010 U.S. Dist. LEXIS 46471, at *13–14 (W.D. Ky. May 11,

2010). In order to satisfy “the Federal Rules and justify a claim of privilege . . . a privilege log

must contain sufficient factual content to allow the court to reach the conclusion that each element

of the privilege is fulfilled.” Id. at *14.

Courts require that privilege logs contain the following: (1) a description of the document;

(2) the date the document was prepared; (3) the date of the document, if different from the date it

was prepared; (4) the identities of who prepared the document; (5) the identities of who the

document was prepared for and who the document was directed at; (6) the purpose of preparing

the document; (7) the number of pages of the document; (8) the privilege being asserted; (9) and

any other information necessary to assert the privilege. Cooey v. Strickland, 269 F.R.D. 643, 649

(S.D. Ohio 2010). Thus, Defendant’s privilege log must include these elements while

simultaneously illustrating that the elements of attorney-client privilege and the work product

doctrine are satisfied.

B. Attorney-Client Privilege

The attorney-client privilege is the oldest privilege relating to confidential

communications. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The purpose of attorney-

client privilege is “(1) to promote loyalty between lawyers and their clients; and (2) to encourage

full disclosure by clients to their attorneys.” Dadosky v. Mid-Am. Conversion Servs., LLC, No.

2:22-cv-02503, 2025 U.S. Dist. LEXIS 70543, at *6–7 (S.D. Ohio Apr. 14, 2025) (citing Reed v.

Baxter, 134 F.3d 351, 356 (6th Cir. 1998)). However, because the privilege prevents the disclosure

of otherwise relevant evidence, it is applied narrowly to “protect[] only those disclosures necessary

to obtain informed legal advice which might not have been made absent the privilege.” Fisher v.

United States, 425 U.S. 391, 403 (1976). The Sixth Circuit has outlined the elements of attorney-

client privilege as follows:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser

in his capacity as such, (3) the communications relating to that purpose, (4) made

in confidence (5) by the client, (6) are at his instance permanently protected (7)

from disclosure by himself or by the legal adviser, (8) unless the protection is

waived.

Reed, 134 F.3d at 355–56. Notably, “[t]he privilege only protects disclosure of communications;

it does not protect disclosure of the underlying facts by those who communicated with the

attorney[.]” Upjohn, 449 U.S. at 395.

Moreover, “it is now well settled that private corporations and other organizations may

constitute clients for the purposes of attorney-client privilege.” Reed, 134 F.3d at 356 (citing

Upjohn, 449 U.S. at 389–90). This can lead to the intermingling of business advice and legal

advice. “Where business and legal advice are intertwined, the legal advice must predominate for

the communication to be protected.” Alomari v. Ohio Dep't of Pub. Safety, No. 2:11-cv-00613,

2013 U.S. Dist. LEXIS 118754, at *6–7 (S.D. Ohio Aug. 21, 2013) (quoting Neuder v. Battelle

Pac. Nw. Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000)). Thus, the key inquiry is to analyze

“whether the predominant purpose of the communication is to render or solicit legal advice.”

Cooey, 269 F.R.D. at 650 (quoting Pritchard v. County of Erie (In re County of Erie), 473 F.3d

413, 420 (2d. Cir. 2007)); see In re FirstEnergy Corp. Sec. Litig., No. 2:20-cv-03785-ALM-KAJ,

2024 U.S. Dist. LEXIS 84091, at *11 (S.D. Ohio May 6, 2024) (“Whether the internal

investigation’s purpose was primarily business or human resources-related is crucial in

determining whether the privilege exists, because the investigation’s predominant purpose must

be legal for the privilege to apply.”). Put another way, attorney-client privilege “does not apply

where the legal advice is merely incidental to business advice.” Burton v. R.J. Reynolds Tobacco

Co., 170 F.R.D. 481, 484 (D. Kan. 1997) (citing In re Brand Name Prescription Drugs Antitrust

Litigation, No. 94 C 897, MDL 997, 1995 U.S. Dist. LEXIS 7937 (N.D. Ill. 1995)).

C. Work Product Doctrine

The work product doctrine “protects from discovery documents and tangible things

prepared in anticipation of litigation by or for a party or by or for that party's representative.”

Roxworthy, 457 F.3d at 593; Fed. R. Civ. P. 26(b)(3). To determine whether an alleged work

product was created in anticipation of litigation, the Sixth Circuit adopted the “because of” test.

Roxworthy, 457 F.3d at 593. This test has both an objective and a subjective component. Id. at 594.

Specifically, courts applying this test must look at “(1) whether a document was created because

of a party's subjective anticipation of litigation” and “(2) whether that subjective anticipation of

litigation was objectively reasonable.” Id. Because documents prepared in the ordinary course of

business are not specifically prepared in anticipation of litigation, they are not covered by the

“because of” test and thus not protected by the work product doctrine. Id. at 593.

III. Discussion

As noted above, Plaintiff requests the Court to compel discovery of the alleged improperly

withheld documents relating to Plaintiff’s termination or, in the alternative, to conduct an in

camera review of these documents. (Doc. #25, PageID #329). Notably, Defendant does not dispute

the relevance of the withheld documents. (Doc. #23, PageID #262). Nevertheless, Defendant asks

the Court to deny Plaintiff’s motion to compel on the grounds that the requested documents are

protected by attorney-client privilege or the work product doctrine. See id. at 265–68.

A. Privilege Log

First, the undersigned orders that Defendant update its privilege log to properly enable

Plaintiff to assess its claims of privilege. Although Defendant’s privilege log meets many of the

requirements outlined by Cooey, 269 F.R.D. at 649, Defendant’s clustering of email strings logged

under a singular claim of privilege makes it near impossible to decipher how and to what extent

the asserted privileges apply. See Doc. #23-1.

Whether or not emails within a string are required to be logged separately is a developing

issue in case law, with courts coming to different conclusions. Compare United States v. Davita,

Inc., 301 F.R.D. 676, 685 (N.D. Georgia 2014) (requiring that “each withheld email within a string

be logged in some fashion at least once.”) with Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D.

Ill. 2007) (declining to adopt the view that each email within a string be separately logged). The

Sixth Circuit has not yet addressed this issue. However, the majority view is that “individual emails

within a string should be separately logged in some fashion.” Davita, 301 F.R.D. at 685; see, e.g.,

In re Bystolic Antitrust Litig., No. 20-cv-5735, 2021 U.S. Dist. LEXIS 44042, at *11–12 (S.D.N.Y.

Mar. 9, 2021); Pace-O-Matic, Inc. v. Eckert Seamans Cherin & Mellott, LLC, No. 1:20-cv-00292,

2023 U.S. Dist. LEXIS 214655, at *15 (M.D. Pa. Dec. 1, 2023), rev’d on other grounds, 2024 U.S.

Dist. LEXIS 77113 (M.D. Pa. Apr. 29, 2024); Doe v. Intermountain Health Care, Inc., No. 2:18-

CV- 807-RJS-JCB, 2021 U.S. Dist. LEXIS 9078, at *6 (D. Utah Jan. 16, 2021); Townhouse Rest.

of Oviedo v. Nuco2, No. 19-14085-CIV-ROSENBERG/MAYNARD, 2020 U.S. Dist. LEXIS

108809, at *3–4 (S.D. Fla. May 5, 2020).

The undersigned adopts the majority view because it comports with the Federal Rules of

Civil Procedure, as it properly “enable[s] other parties to assess the claim” of privilege being

asserted. Fed. R. Civ. P. 26(b)(5); see, e.g., Davita, 301 F.R.D. at 685 (“Logging the details of

only the ultimate, top, email would not accurately state how many separate communications are

included in the withheld document, and who received which of those communications. Such an

approach may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of

privilege.”); In re Bystolic Antitrust Litig., 2021 U.S. Dist. LEXIS 44042, at *11 (“Requiring

privilege logs to include only one entry for each email thread containing withheld emails would

limit the ability of the parties and the Court to effectively evaluate the basis of the privilege

asserted.”); Townhouse Rest. Of Oviedo, 2020 U.S. Dist. LEXIS 108809, at *3–4 (Requiring each

email in a string to be individually logged “makes sense because a string of emails consists of

several individual communications that just happen to be physically linked as one document

because of how, when and to whom they were sent or forwarded. Logging them collectively as a

‘email thread’ does not accurately describe how many separate communications were involved,

who received those communications and how they are privileged communications.”).

In the present case, one of the first entries in Defendant’s privilege log––identified as Bates

No. RH000255-74––illustrates the issue with logging a string of email communications under a

singular claim of privilege. See Doc. #23-1, PageID #317. As evidenced by the numbering system–

–that is, 000255-74––this singular entry contains nearly twenty pages of email communications.

Id. Moreover, it lists the document type as “Multiple email communications”; it lists five different

dates spanning the course of fourteen days; and it lists seven different authors and seven different

recipients, many of whom are non-attorneys. Id. Finally, it asserts the protection of attorney-client

privilege and the work product doctrine with the following reason: “Counsel actively

communicating with Rocking Horse Board Members and HR Director, rendering legal analysis

and advice and answering questions to develop strategies related to Plaintiff’s pre-suit claims,

possible early resolution as well as Plaintiff’s employment with Rocking Horse.” Id.

Although this reasoning could be sufficient to justify a claim of privilege, it is unclear that

this reasoning applies to nearly twenty pages of email communications when there are multiple

non-attorneys listed as authors and recipients, and the communications span a period of fourteen

days. Again, that is not to say that mere communication between non-attorneys destroys the

privilege. Corkrean v. Drake Univ., No. 4:21-cv-00336-RGE-SHL, 2022 U.S. Dist. LEXIS 10156,

at *7 (S.D. Iowa Jan. 3, 2022) (stating that “[c]ourts overwhelmingly recognize that a

communication is not per se unprivileged simply because it is solely between non-attorneys.”).

However, as the email communications are currently logged, it is impossible for Plaintiff, or this

Court, to properly evaluate Defendant’s claim of privilege.

Thus, the undersigned ORDERS Defendant update its privilege log to properly enable

Plaintiff to assess Defendant’s claims of privilege within fourteen days. In doing so, Defendant is

not required to log an email multiple times if it appears more than once in an email string. See

Davita, 301 F.R.D. at 685. Rather, it is merely required that “each withheld email within a string

be logged in some fashion at least once.” Id.

B. Executive Committee Notes and Personnel Committee Notes

The second issue is whether Defendant may be compelled to disclose its Executive

Committee Notes and Personnel Committee Notes, listed as Bates Nos. RH000302-03 and

RH000305-07 respectively. (Doc. #23-1, PageID #318–19). Plaintiff argues that these documents

are not privileged because, in essence, they are the product of business meetings where counsels’

presence was incidental to the decisions being made. See Doc. #21, PageID #183. Defendant, on

the other hand, asserts that counsels’ presence was not incidental to the purpose of either meeting,

but rather “these meetings were held for the sole purpose of discussing Plaintiff’s situation,

including navigating the pre-suit waters” and “Rocking Horse’s counsel was heavily involved and

facilitated the discussion.” (Doc. #23, PageID #266). To properly address this issue, a review of

the relevant case law is instructive.

In Dadosky v. Mid-Am. Conversion Servs., LLC, No. 2:22-cv-02503, 2025 U.S. Dist.

LEXIS 70543, at *3–4 (S.D. Ohio Apr. 14, 2025), an employee was fired for her failure to take

the COVID-19 vaccine, and she subsequently filed a lawsuit against her employer and its senior

contractor on the grounds of failure to accommodate her religious beliefs, retaliation, and

employment discrimination. During the discovery process, plaintiff sought disclosure of certain

communications relating to the senior contractor’s Accommodations Review Committee (“ARC”).

Id. at *5–6. The ARC included members of the contractor’s management team, human resources,

and its in-house counsel. Id. at *5. The ARC met weekly during the contractor’s accommodations

period to discuss whether employees were exempt from taking the COVID-19 vaccine. Id. During

these meetings, the ARC “took notes[] and kept minutes.” Id. The defendant-contractor objected

to the discovery of these communications on the basis of attorney-client privilege. Id. at *5–6. In

support of its objection, the contractor contended that ARC was created “for the purpose of

determining its legal rights” with respect to the federal vaccine mandate and the accompanying

accommodations requests. Id. at *8. The plaintiff argued that ARC was engaged in a primarily

business function where “the predominant purpose was to decide employment matters”––i.e., its

purpose was to decide “whether to grant [p]laintiff’s accommodation request or to terminate her.”

Id. at *9.

Ultimately, the Dadosky court concluded that the contractor failed to carry its burden of

showing that the ARC communications “were for the purpose of rendering or soliciting legal

advice.” Id. at *19. The court reasoned that it was “reticent to credit [the contractor’s] ‘self-serving

declaration’” which failed to establish that its in-house counsel “was acting in a legal capacity as

a[n] [ARC] member.” Id. at *21. Accordingly, the court allowed the contractor to submit additional

evidence to clarify the basis of attorney-client privilege regarding the ARC meetings and ordered

the contractor to submit for in camera review “an affidavit and any supporting documentation

setting forth in detail the communications of the [ARC] meetings.” Id. at *22.

In Neuder v. Battelle Pac. Northwest Nat’l Lab., 194 F.R.D. 289, 293 (D.D.C. 2000), a

plaintiff-employee sought discovery of communications made during his termination. Specifically,

the defendant-company decided to terminate plaintiff through a meeting with its Personnel Action

Review Committee (PARC), and plaintiff sought discovery of the communications made during

that meeting. Id. As required by the defendant’s disciplinary policy, its senior attorney was present

at the meeting as a member of PARC. Id. at 292. Accordingly, the defendant argued that the PARC

communications were protected by attorney-client privilege because their senior attorney “was

acting as a legal advisor” and “the primary purpose of the PARC meetings was to render legal

advice.” Id. at 293.

The Neuder court found that the PARC served a predominantly business purpose and that

the defendant’s senior attorney was serving “in a predominantly non-legal capacity.” Id. at 293–

95. In doing so, it found that the purpose of the PARC meeting was to terminate plaintiff, which it

believed to be predominantly a business purpose. Id. at 293–94. Further, the court found that the

senior attorney’s role as a member and chairperson of PARC was dispositive in showing that he

acted in a non-legal capacity. Id. at 295.

Finally, in Marten v. Yellow Freight Sys., No: 96-2013-GTV, 1998 U.S. Dist. LEXIS 268

(D. Kan. Jan. 6, 1998), a terminated employee sought discovery of the meeting minutes at which

his company’s Employee Review Committee (“ERC”) decided to terminate him. Id. at *4. The

defendant-company objected on the grounds of attorney-client privilege, claiming that the minutes

“contain[ed] material discussed between and among [] employees and [in-house counsel] for

purposes of rendering legal advice on how to address plaintiff’s disciplinary problems.” Id. It also

objected on the grounds of work product because the minutes were drafted by in-house counsel

“in anticipation of litigation.” Id. at *4–5. Notably, defendant’s in-house counsel was acting as a

voting member of the ERC. Id. at *20–21.

The Marten court sustained plaintiff’s motion to compel and required disclosure of the

meeting minutes. Id. at *32. In coming to its decision, it held that the ERC meeting minutes were

not protected by attorney-client privilege. Id. at *22–27. It reasoned that although the ERC meeting

may have “include[d] consideration of legal consequences of a proposed employment action[,]”

the meeting’s primary function “appear[ed] to be a decision of what employment action to take

against an employee.” Id. at *22. Thus, it stated, “the business purposes of such a decision

predominate the legal issues.” Id. Moreover, it noted that in-house counsel’s position as a voting

member of the ERC illustrated that he “was not acting merely as an attorney rendering legal

advice.” Id. at *23. And it rejected the defendant’s claim of work product protection because it

failed to show that the primary purpose of creating the meeting minutes was in anticipation of

litigation. Id. at *30.

Based on the foregoing, the undersigned ORDERS Defendant to submit its Executive

Committee Notes and Personnel Committee notes to the Court for in camera review within

fourteen days. It is unclear whether either committee meeting, or accompanying set of notes,

served a predominantly legal purpose. See Doc. #23-1, PageID #318–19. Both communications

assert protections of attorney-client privilege and the work product doctrine. Id. As for the reason

the privileges are asserted, Defendant indicates for the Executive Committee Notes: “Counsel was

present for discussions and actively participating by rendering legal advice which is reflected in

this document. The meeting was held for the purpose of discussing Plaintiff’s possible severance.”

Id. at 318. For the Personnel Committee Notes, Defendant states the following reason:

Counsel was present for discussions and actively participating by rendering legal

advice, and the meeting was held for the sole purpose of discussing a potential

severance offer to Plaintiff. All discussions were held at the request of counsel with

counsel present. Employment decisions were made regarding Plaintiff based upon

the advice given by legal counsel, which advice is detailed in the document.

Id. at 319.

This language makes clear that each committee meeting was held for the “purpose of

discussing a potential severance offer to Plaintiff.” Id. at 318–19. Discussing a potential severance

offer is comparable to a meeting where the purpose is to discuss an employee’s termination. Both

the Neuder and Marten courts, as discussed above, found that such a decision serves a

predominantly business purpose. See Neuder, 194 F.R.D. at 293–94; Marten, 1998 U.S. Dist.

LEXIS 268, at *22 (stating that when a meeting’s primary function concerns what employment

action to take against an employee, it serves a predominantly business purpose). Moreover, it is

difficult to credit Defendant’s “self-serving declaration” that “all discussions were held at the

request of counsel with counsel present” and that counsel was “actively participating by rendering

legal advice” when there is little evidence to support such a claim. See Neuder, 194 F.R.D. at 295;

(Doc. #23-1, PageID #318–19); see also Dadosky, 2025 U.S. Dist. LEXIS 70543, at *20–21

(taking into consideration that defendant’s counsel did not provide an affidavit to help illustrate

the purpose of the committee discussions at issue).

Defendant attempts to distinguish the instant case from Dadosky, Neuder, and Marten in

its Brief in Opposition to Plaintiff’s Motion to Compel. (Doc. #23, PageID #267–68). First,

Defendant attempts to distinguish itself from Dadosky on the grounds that no employment action

was taken as a result of the meeting in that case. Id. at 267. While it is true that the committee in

Dadosky did not expressly make an employment decision like hiring, firing, or offering severance,

this fact makes little difference. Both Dadosky and the instant case concern an employment-based

cause of action where a terminated employee seeks discovery of communications had during

committee meetings. Not to mention that the committee’s decision in Dadosky ultimately led to

the plaintiff’s firing, even if the committee did not make that decision directly. Defendant further

attempts to distinguish its case on the grounds that Dadosky contained “insufficient evidence in

the record to determine whether the attorneys on the committee were acting in a legal capacity.”

Id. However, as discussed above, there is insufficient evidence here to determine the purpose of

Defendant’s committee meetings. If the purpose of the meetings was predominantly a business

purpose, then attorney-client privilege may not apply regardless of the presence of Defendant’s

attorneys. Moreover, even if Defendant’s attorneys were present and acting in a legal capacity,

that does not mean that all communications made during the committee meetings are automatically

protected. See Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615, 619 (D. Kan. 2001)

(holding that communications made between committee members were not protected by attorney-

client privilege while communications from committee members to counsel for the purpose of

obtaining legal advice were protected).

Next, Defendant attempts to distinguish its case from Neuder and Marten for the following

reasons: (1) because the attorneys present were outside counsel and not Rocking Horse employees

or board members, “they could not have been acting in a business capacity”; and (2) Rocking

Horse’s board was not required to meet on the issue, but rather these meetings were held for the

purpose of rendering legal advice that was solicited by Rocking Horse employees. (Doc. #23,

PageID #268). As to the first point, it is true that the committee meetings in question would more

likely resemble business meetings if the attorneys present served on the committees. See Marten,

1998 U.S. Dist. LEXIS 268, at *23 (“Membership on a committee which decides if an employee

should be terminated . . . may lead to an inference that the attorney, at least in part, was acting in

a non-legal capacity.”). However, the mere fact that Defendant’s attorneys were not employees or

board members is not sufficient to show that the committee meetings were held for a

predominantly legal purpose. See Lewis, 203 F.R.D. at 619 (finding that communications made

between committee members were not protected by attorney-client privilege despite the presence

of outside counsel and in-house counsel, both of whom were non-committee members). Similarly,

although it may be true that Rocking Horse’s board was not required to meet on the issue, that fact

alone does not warrant protection by attorney-client privilege. And again, as discussed above, it

remains unclear whether the predominant purpose of these meetings was for rendering or soliciting

legal advice.

Finally, to the extent that Defendant wished to protect the Executive Committee Notes or

Personnel Committee Notes through the work product doctrine, it failed to make the necessary

arguments to do so. Defendant made no argument that these documents were prepared in

anticipation of litigation other than labeling each entry in its privilege log with “work product” as

a reason for protection. (Doc. #23-1, PageID #318). This is not enough to overcome the burden of

establishing the work product privilege. Cf. Dadosky, 2025 U.S. Dist. LEXIS 70543, at *7–8

(citing United States v. Roxworthy, 457 F.3d 590, 597 (6th Cir. 2006)) (“Blanket claims of

privilege or conclusory assertions are generally insufficient to carry this burden.”). Likewise,

Defendant fails to make any argument regarding protection of the Draft Separation Agreement––

labeled Bates No. RH000385-92––other than stating that it was “prepared by an attorney and

constitute[s] attorney work product.” (Doc. #23, PageID #266).

Accordingly, Plaintiff’s motion to compel (Doc. #21) is hereby DENIED. However,

Plaintiff’s request for in camera review (Doc. #21) is hereby GRANTED. Defendant shall produce

the Executive Committee Notes, Personnel Committee Notes, and Draft Separation Agreement––

listed as Bates Nos. RH000302-03, RH000305-07, and RH000385-92 respectively–––unredacted

for in camera review within fourteen days of this order. Finally, Defendants must file an updated

privilege log identifying each withheld email within a string at least once, and it must do so within

fourteen days of this Order.

Defendant is ADVISED that its failure to comply with this Order may result in the waiver

of its asserted privileges. See Fed. R. Civ. P. 26(g).

IT IS THEREFORE ORDERED THAT:

1. Plaintiff Shonda Wallace’s Motion to Compel Discovery

(Doc. #21) is DENIED; and

2. Plaintiffs request for in camera review (Doc. #21) is

GRANTED; and

3. Defendant shall submit the documents identified above for

in camera review on or before July 7, 2026; and

4. Defendant shall file an updated privilege log on or before

July 7, 2026.

June 23, 2026 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge