Order: CYBER ISLAND VS SPRINGFIELD TOWNSHIP POLICE DEPARTMENT

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DANIEL M. HORRIGAN
@IOSEP -3 PH 2: 26

SUMM:T COUNTY
CLERK OF COURTS — IN THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT
CYBER ISLAND, et al., ) CASE NO. CV 2010 06 4165 47
) (Consolidated with Case No.
Plaintiffs ) CV-2010-06-4194)
)
-vs- ) JUDGE PARKER
)
SPRINGFIELD TOWNSHIP POLICE )
DEPARTMENT, et al., ) ORDER ON PLAINTIFFS’
) MOTIONS TO QUASH
Defendants. ) AND FOR PROTECTIVE ORDER

This matter is currently before the court as a result of a discovery dispute between the
parties. Simply stated, defendant, County of Summit, requested the production of documents
from plaintiffs. Plaintiffs have resisted production due to the fears that the county could turn the
records over to law enforcement personnel who either are or could prosecute defendants’
principals for alleged gambling violations.' Although the court invited defendant to submit a
brief on this issue, for the reasons below, the court hereby overrules the oral and written motions
to quash and for protective order, thereby rendering any brief of defendant superfluous.

Plaintiffs’ resistance of defendant’s discovery requests is founded on the purported Fifth
Amendment rights of plaintiffs. U.S. Const. am. 5. In support of their position, plaintiffs have
referred the court to the decision in City of Cincinnati v. Bawtehheimer (1982), 83 Ohio St.3d
260, which plainly held that an individual may assert his Fifth Amendment rights and decline to

produce records to a city tax commissioner when the potential existed that the commissioner

' The court has been informed that either the owner of Cyber Island or Richard A. Bowling is currently defending
misdemeanor charges in the Akron Municipal Court. Counsel for defendants Gold Rush Cyber Café, LLC and
Spinners Interned Café, LLC is concerned that his production of the requested records could also be used in support
ofa criminal charge against the principals of his clients.COPY

 

might use the records to prosecute the individual criminally. Notably, the Supreme Court
observed: “The Fifth Amendment’s protection against self-incrimination applies to any type of
proceeding, whether civil, criminal, administrative, investigatory or adjudicatory. . . . And it
applies not only to evidence which may directly support a criminal conviction, but also to
information which may furnish a link in the chain of evidence that could lead to prosecution.”
Id. at 266. On the surface, Bawtenheimer supports plaintiffs’ assertion that they should not have
to produce records to the County in this action. If that were true, the court would be required to
determine the effect of plaintiffs’ privilege assertions on their ability to prosecute this case.

Upon closer examination, the court concludes that plaintiffs have no right to make a
privilege assertion in the first instance. In Bellis v. United States (1974), 417 U.S. 85, 94 S.Ct.
2179, 40 L.Ed.2d 678, the Supreme Court ruled that the Fifth Amendment privilege is a “purely
personal one” and “no artificial organization may utilize the personal privilege against
compulsory self-incrimination.” 417 U.S. at 90. In addition, the court ruled that “an individual
acting in his official capacity on behalf of the organization may likewise not take advantage of
his personal privilege. In view of the inescapable fact that an artificial entity can only act to
produce its records through its individual officers or agents, recognition of the individual's claim
of privilege with respect to the financial records of the organization would substantially
undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth
Amendment privilege.” Id.

Where, as here, the party from whom records are requested is a corporation or other
“artificial organization,” the Fifth Amendment does not apply. And in this particular context,
even if the individuals who own controlling interest in plaintiff corporations were to claim
privilege in order to protect themselves under the Fifth Amendment, they could not do so for
anything other than private, personal records. Here, there has been no showing or even argument
suggesting that the records sought by the county are anything other than corporate business
records.

For the foregoing reasons, plaintiffs’ motions, oral and written, to quash defendant’s
requests for production of documents or to seek a protective order in respect thereto are
DENIED. Plaintiffs are ORDERED to produce the requested records forthwith.COPY

IT IS SO ORDERED.

JUDGE TOM

cc: ATTORNEY DONALD J. MALARCIK
ATTORNEY KIRK A. MIGDAL
ATTORNEY MICHAEL T. CALLAHAN
ATTORNEY MARVIN D. EVANS