Ohio Dormant Mineral Act Claim May Waive Attorney-Client Privilege – Litigation, Mediation and Arbitration
Porter Wright Morris & Arthur
United States: Ohio Dormant Mineral Act Claim May Waive Attorney-Client Privilege
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In the camp of being careful how you plead and intend to prove a claim, those claiming an Ohio Dormant Mineral Act (ODMA) claim should pay close attention to their pleading so as not to give up. the privileges of the attorney-client product or the attorney’s work. As the complainants in Riccardi vs. Jackson discovered, waiver is a real possibility.
Monroe County ODMA Claim
The complaint in question sought to declare that the oil and gas rights previously wrested had been abandoned. In support of this allegation, the applicant alleged, among other things:
- they engaged a lawyer to determine whether savings events under the ODMA occurred and whether service of the notice of abandonment by certified mail was possible;
- the lawyer searched for records in Monroe County, Ohio;
- the lawyer was unable to find the names / addresses of the holder of the separate interest;
- the plaintiffs had no information from the attorney’s search that would require them to look beyond Monroe County; and
- the attorney’s research was consistent with the baseline of due diligence in identifying the holder (s) of the severed mining interest.
Finally, the complainants did in fact attach some of the lawyer’s notes to their complaint.
Upon discovery, the defendant served a subpoena on the attorney who had been hired to carry out the search, searching for just about all documents relating to this work, including “all documents and communications relating to the search. title that you have made with respect to the premises, including but not limited to briefing notes, correspondence, memoranda and e-mails. “
The complainants requested that the summons be quashed on the grounds that (i) they only received the summons notice after it had been served and (ii) he improperly sought information protected by the summons. solicitor-client privilege. After a full briefing, the court dismissed the petition.
Regarding the issue of notice, the Court said that notice is required by rule 45, but that the purpose of notice is to allow the other party to object. Here, the plaintiff objected and the Court suspended the time to respond to the summons until this objection was resolved. As such, there was no prejudice and the first ground was rejected.
Waiver of solicitor-client privilege protection
With respect to the question of privilege, the Court determined that the plaintiffs had waived any protection afforded by solicitor-client privilege (they did not raise objections to work product privilege) with respect to searches and due diligence of their former lawyer under ODMA. While noting that solicitor-client privilege is the oldest privilege and serves a necessary purpose, the Court assessed the situation under rule of evidence 502 and determined that the conduct of the plaintiffs waived the privilege as to the whole subject. 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 attorney’s work in the complaint that created the waiver.
The Court is aware of the importance of professional secrecy and does not take this decision lightly. To be clear, although the Court agrees with the plaintiffs that “[t]he decision to retain professional legal services in pursuit of a legal remedy, by itself, does not constitute a waiver of otherwise privileged communications ”, it is not the basis for the waiver of applicants in this case. (See ECF No. 30 at PAGEID # 222.) Instead, the plaintiffs waived their privilege by: affirmatively alleging that they hired attorney Yoss to conduct the search; affirmatively alleging that the research met the “baseline due diligence” standard established by the Ohio Supreme Court; affirming affirmatively that they “had no independent knowledge or information revealed by the search of the lawyer Yoss which would oblige them to continue to seek elsewhere”; and affirmatively appending Lawyer Yoss’s notes to the complaint. (See ECF # 1 through PAGEID # # 4-5.)
Considerations for Discovering ODMA Claims
So if you are considering ODMA action in Ohio, be sure to consider that whoever does the underlying due diligence, due to pleading and evidentiary issues, will likely be required to provide discovery and testimony. . Since solicitor-client privilege and / or work product doctrine may not be applicable, consider whether it would be better to use a title finder or other non-lawyer to conduct the search, or to use another lawyer to carry out the investigation from a pressing the claim in the court. Alternatively, if you are facing ODMA action in Ohio, be sure to consider all potential sources of detectable information.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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