State v. Glenn (Slip Opinion) , 2021 Ohio 3369 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Glenn, Slip Opinion No. 2021-Ohio-3369.]
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3369THE STATE OF OHIO, APPELLEE, v. GLENN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Glenn, Slip Opinion No. 2021-Ohio-3369.]
Criminal law—R.C. 2505.02—Crim.R. 16—Discovery—Final, appealable
orders—Trial court’s order for defense counsel to prepare and disclose
summaries of defense-witness statements did not satisfy the requirements of
R.C. 2505.02(B)(4) for being a final, appealable order—Court of appeals’
judgment affirmed.
(No. 2020-0338—Submitted April 13, 2021—Decided September 28, 2021.)
APPEAL from the Court of Appeals for Montgomery County, No. 28736.
_______________________
DEWINE, J.
{¶ 1} This case is about the timing of an appeal. Samuel Glenn is set to be
tried on a sexual-battery charge. He claims to have an alibi—and the judge
presiding over the case has ordered Glenn’s attorney to provide information to the
prosecution about what Glenn’s alibi witnesses intend to say at trial. Glenn asserts
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that the judge has made a mistake; he contends that he shouldn’t have to turn over
the information because it is protected from disclosure by the attorney-work-
product doctrine. The question before us is when can Glenn challenge the trial
judge’s decision: can he appeal now, or does he need to wait until the end of his
case? For reasons that we will explain, we conclude that Glenn must wait until the
end of his case.
I. The trial court’s discovery order
{¶ 2} Glenn is a high-school teacher. He was indicted on allegations that
he had engaged in sexual conduct with one of his students at his apartment. During
the pretrial phase of the case, Glenn’s attorney filed a notice of alibi and provided
a list of defense witnesses to the prosecution. As later amended, the notice listed
three locations where Glenn claimed to have been at the time that the incident was
alleged to have occurred and identified ten people who he says were with him at
one point or another that night. The state filed a motion to compel discovery, asking
the trial court to order defense counsel to produce witness statements and
investigative reports regarding the expected testimony of Glenn’s witnesses. In
response, Glenn’s attorney said that he did not have any written or recorded witness
statements.
{¶ 3} The state later filed a supplemental motion to compel discovery, again
requesting “[w]itness statements and/or reports summarizing proposed testimony
of defense witnesses.” The state was most interested in finding out the expected
testimony of Glenn’s ex-girlfriend, one of the alibi witnesses. The motion
explained that defense counsel had informed the prosecutor that Glenn’s ex-
girlfriend would testify that she had been with Glenn for the entire night of the
alleged crime. The state contended that this testimony would directly conflict with
that of the victim, who claimed to have been assaulted by Glenn at his apartment
the same night.
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{¶ 4} According to the state, a detective attempted to contact Glenn’s ex-
girlfriend, but she retained an attorney and refused to talk to any representative of
the state or provide a written witness statement. She did, however, speak to Glenn’s
attorney and a defense investigator. The state acknowledged that defense counsel
had “verbally relayed the content of those conversations to prosecutors,” but it
asked the court to order defense counsel to provide written summaries of the
expected testimony of Glenn’s ex-girlfriend and other defense witnesses, asserting
that the defense had “provided nothing to the State that would allow the prosecution
to conduct an effective cross-examination.”
{¶ 5} Following a hearing, the trial court issued an order granting the state’s
motion to compel. The trial court determined that Crim.R. 16 mandates disclosure
of written summaries of oral conversations with witnesses and that the defense has
a reciprocal duty to disclose to the prosecution any evidence that tends to support
an alibi. The trial court further noted that even if Crim.R. 16 does not mandate such
disclosure, the Second District Court of Appeals has held that the local rules of the
Montgomery County Court of Common Pleas require reciprocal discovery of all
statements made by witnesses. See State v. Rohde, 2d Dist. Montgomery No.
26087, 2014-Ohio-5580, ¶ 34-35.
{¶ 6} The trial court rejected Glenn’s argument that its order would
erroneously compel the production of protected attorney work product. The court
concluded that disclosures mandated under the Ohio Rules of Criminal Procedure
supersede the work-product protection. It further noted that such statements are
subject to disclosure only to the extent that they do not contain “internal
communication of impressions, conclusions, strategy, or opinions.” The trial court
also made clear that its disclosure order does not apply to information that would
incriminate Glenn or statements intended to be used solely as impeachment
evidence. With those caveats, the trial court ordered defense counsel “to provide
the State with written summaries of the statements made to defense counsel and the
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defense investigator by the witnesses [the] defense intends to call regarding
[Glenn’s] alibi.” And the court warned that the failure to comply with the order
would result in the exclusion of the witnesses’ testimony.
{¶ 7} Glenn appealed the trial court’s discovery order to the Second District
Court of Appeals, and the state moved to dismiss the appeal for lack of a final,
appealable order. Glenn’s attorney responded that the order was immediately
appealable, because it required him to create written summaries of his oral
conversations with witnesses, which he contended were protected as attorney work
product.
{¶ 8} The Second District granted the state’s motion to dismiss. The court
held that Glenn had not made a sufficient showing that he “would not be afforded
a meaningful or effective remedy by an appeal following final judgment,” as
required by R.C. 2505.02(B)(4)(b) for the order to be final and appealable. 2d Dist.
Montgomery No. 28736, ¶ 11.
{¶ 9} Glenn appealed the Second District’s judgment to this court, and we
accepted the case. See 159 Ohio St.3d 1434, 2020-Ohio-3634, 148 N.E.3d 592.
Glenn asserts that an order requiring an attorney to create and turn over to the
prosecution summaries of conversations that the attorney has had with potential
witnesses is a final, appealable order. He further contends that an order that
compels the disclosure of attorney work product in a criminal case should always
be treated as a final, appealable order.
II. Elements of a final order
{¶ 10} The Ohio Constitution grants the courts of appeals “such jurisdiction
as may be provided by law” to review “final orders” rendered by inferior courts.
Ohio Constitution, Article IV, Section 3(B)(2). R.C. 2505.02 helps fill in the
“provided by law” part of that jurisdictional grant by setting forth a definition of
what constitutes a final order. The general rule is that all orders in a case must be
reviewed in a single appeal after final judgment. See Anderson v. Richards, 173
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Ohio St. 50, 55, 179 N.E.2d 918 (1962) (acknowledging “the principle that there
should be only one appeal in the cause itself wherein all errors can be urged
simultaneously”); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868,
114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (the “general rule [is] that a party is entitled
to a single appeal, to be deferred until final judgment has been entered, in which
claims of [trial] court error at any stage of the litigation may be ventilated”). But
R.C. 2505.02 provides a limited exception by including within the definition of a
final order certain types of interlocutory decisions of a trial court.
{¶ 11} Relevant here is the provision addressing orders granting or denying
a “provisional remedy.” Under R.C. 2505.02(B)(4), an appellate court has
jurisdiction to review, affirm, modify, or reverse an “order that grants or denies a
provisional remedy” when both of the following circumstances are satisfied:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
This provision guides our analysis and resolution of this case.
A. The order grants a provisional remedy
{¶ 12} The threshold requirement for an order to be appealable under R.C.
2505.02(B)(4) is that the order must grant or deny a provisional remedy. A
provisional remedy is “a proceeding ancillary to an action” and includes a
proceeding for “discovery of privileged matter.” R.C. 2505.02(A)(3). This court
has held that a discovery order compelling the disclosure of attorney work product
falls within the rubric of “discovery of a privileged matter” and is therefore a
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provisional remedy. Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31
N.E.3d 633, ¶ 5-6; see also Squire, Sanders & Dempsey, L.L.P. v. Givaudan
Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55.
{¶ 13} Still, that leaves something of a chicken/egg quandary: the state
disputes that the order requires the disclosure of attorney work product. But at this
juncture, we need not resolve the question whether the trial court’s order
definitively compels the disclosure of protected attorney work product. “To impose
such a requirement would force an appellate court ‘to decide the merits of an appeal
in order to decide whether it has the power to hear and decide the merits of an
appeal.’ ” Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12 (1st
Dist.), quoting Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928
N.E.2d 763, ¶ 35 (10th Dist.). Rather, to determine whether the order satisfies the
provisional-remedy requirement for appealability, we need review only whether
Glenn has made a colorable claim that the order directs him to disclose information
that might be protected attorney work product. Id.{¶ 14} The trial court ordered Glenn’s attorney to create summaries of his
conversations with defense witnesses. Yet the scope of the order is somewhat
circumscribed: it suggests that in creating those summaries, Glenn is not required
to disclose any “internal communication of impressions, conclusions, strategy, or
opinions,” nor must Glenn provide the prosecution with any incriminating
information or statements that the defense intends to use only for impeachment.
{¶ 15} Our discovery rules encourage the disclosure of “information
necessary for a full and fair adjudication of the facts.” Crim.R. 16(A). Indeed, we
have long said that the overall objective of our criminal rules “ ‘ “is to remove the
element of gamesmanship from a trial.” ’ ” State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 19, quoting Lakewood v. Papadelis, 32 Ohio
St.3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard, 56 Ohio St.2d 328,
333, 383 N.E.2d 912 (1978). And we have recognized that our discovery rules
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were designed to “ ‘prevent surprise and the secreting of evidence favorable to one
party.’ ” Id., quoting Lakewood at 3. Thus, with limited exceptions, Crim.R. 16
imposes a reciprocal duty on the defense and the prosecution to disclose material
information to the opposing party. Crim.R. 16(A) and (H).
{¶ 16} Nonetheless, the United States Supreme Court has recognized that
certain aspects of an attorney’s efforts on behalf of his client—reflected in
“interviews, statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and intangible ways”—may be
protected from disclosure as attorney work product. Hickman v. Taylor, 329 U.S.
495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Hickman arose out of an appeal from
a contempt citation by an attorney who had refused to disclose certain materials
prepared by the attorney in preparation for possible litigation. Id. at 500-501. The
court explained that the disclosure of memoranda summarizing an attorney’s oral
interviews with witnesses is “particularly disfavored because it tends to reveal the
attorney’s mental processes,” Upjohn Co. v. United States, 449 U.S. 383, 399, 101
S.Ct. 677, 66 L.Ed.2d 584 (1981), citing Hickman at 513 (noting that such
summaries would reflect “what [the attorney] saw fit to write down regarding
witnesses’ remarks”), and Hickman at 516-517 (Jackson, J., concurring)
(explaining that “the statement would be [the attorney’s] language permeated with
his inferences”). We have recognized the work-product doctrine, noting that it
emanates from the Hickman decision. See Squire, Sanders & Dempsey, L.L.P., 127
Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 54.
{¶ 17} The United States Supreme Court has also held that the attorney-
work-product doctrine applies in criminal cases. United States v. Nobles, 422 U.S.
225, 236, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). And Ohio’s Crim.R. 16(J)
explicitly protects “[m]aterials subject to the work product protection” from
disclosure in criminal cases. By its plain terms, the criminal rule incorporates the
work-product doctrine.
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{¶ 18} The protection for attorney work product is not absolute. Squire,
Sanders & Dempsey, L.L.P. at ¶ 55, citing Nobles at 239. The protection can be
overcome in appropriate circumstances by showing a particularized need for the
information. Hickman at 511; 8 Wright & Miller, Federal Practice and Procedure,
Section 2025 (3d Ed.1999). And the doctrine is generally understood as providing
a much greater level of protection to opinion work product that reveals an attorney’s
thought processes than to mere fact work product, such as witness statements, that
reveal underlying facts without disclosing an attorney’s mental impressions. See,
e.g., In re Antitrust Grand Jury, 805 F.2d 155, 163-164 (6th Cir.1986); In re Grand
Jury Subpoena, 870 F.3d 312, 316 (4th Cir.2017). The former is often said to
require “ ‘an exceptional showing of need’ ” before it can be disclosed, while the
latter has been said to require only a showing of “ ‘good cause.’ ” Grace v.
Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 31-32 (1st
Dist.), quoting Jerome v. A-Best Prods. Co., 8th Dist. Cuyahoga Nos. 79139,
79140, 79141, and 79142, 2002-Ohio-1824, ¶ 20-21; see also Baker v. Gen. Motors
Corp., 209 F.3d 1051, 1054 (8th Cir.2000).
{¶ 19} As the Hickman court acknowledged, “Where relevant and non-
privileged facts remain hidden in an attorney’s file and where production of those
facts is essential to the preparation of one’s case, discovery may properly be had.”
Hickman, 329 U.S. at 511, 67 S.Ct. 385, 91 L.Ed. 451. Thus, although a “lawyer’s
recordation of mental impressions, personal beliefs, trial strategy, legal
conclusions, or anything else that could not be fairly said to be the witness’ own
statement” is entitled to significant work-product protection, Goldberg v. United
States, 425 U.S. 94, 106, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976) (cleaned up), “it is
possible to [require production of] ‘statements’ taken down by an attorney, and still
preserve the sanctity of the attorney’s work product,” Saunders v. United States,
316 F.2d 346, 349-350 (D.C.Cir.1963); see also id. at 350 (if an attorney has made
“a substantially verbatim record of his interview, * * * his notes constitute a
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‘statement’ and include no protected material flowing from the attorney’s mental
processes”).
{¶ 20} For our purposes, though, we need not determine whether Glenn is
correct that compliance with the trial court’s order will improperly require him to
disclose protected work-product information; we need only decide whether he has
made a colorable claim that it will. We conclude (and the state concedes) that he
has. Glenn has set forth at least a plausible theory that compliance with the court’s
order will require him to disclose materials that are protected by the attorney-work-
product doctrine.
B. The order determines the attorney-work-product issue and prevents a
judgment in Glenn’s favor with respect to that issue
{¶ 21} There can be little question that the trial court’s discovery order
meets the second requirement of R.C. 2505.02(B)(4)(a): “[t]he order in effect
determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy.” The order directs defense counsel to create “written summaries of the
statements made to defense counsel and the defense investigator by the witnesses
[the] defense intends to call regarding [Glenn’s] alibi,” and it provides that the
witnesses will be barred from testifying if defense counsel fails to comply. As this
court has previously explained, “[I]t would be impossible to later obtain a judgment
denying [a] motion to compel disclosure if the party has already disclosed the
materials.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000,
89 N.E.3d 536, ¶ 21 (lead opinion). Thus, the order plainly “determines the
[attorney-work-product] issue and prevents a judgment” in Glenn’s favor
“regarding that issue,” id. at ¶ 20. Indeed, the state concedes that this requirement
also has been satisfied.
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C. Glenn has failed to show that any harm caused by the discovery order cannot
be effectively remedied by an appeal after final judgment
{¶ 22} We now turn to the third requirement for an order granting a
provisional remedy to be immediately appealable—and the crux of the parties’
dispute—that the “appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment.” R.C. 2505.02(B)(4)(b). The
burden of establishing the appellate court’s jurisdiction over an interlocutory appeal
“falls on the party who knocks on the courthouse doors asking for interlocutory
relief.” Smith, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8. To
meet this burden, Glenn must establish not only that he has a colorable claim that
the order compels the disclosure of attorney work product but also that any harm
from its disclosure could not be remedied on appeal from a final judgment. Id. at
¶ 5; Burnham at ¶ 20.
{¶ 23} Glenn has failed to make such a showing. In his response to the
state’s motion to dismiss his appeal in the Second District, Glenn offered a single
conclusory statement regarding the effective-remedy requirement, asserting that
“[o]nce the information is released the privilege is violated.” And Glenn’s
arguments in this court are similarly sparse. Echoing concerns discussed in
Hickman, 329 U.S. at 513, 67 S.Ct. 385, 91 L.Ed. 451, Glenn suggests that by
creating summaries of witness statements to comply with the court’s order, defense
counsel might subject himself to being called to testify against Glenn’s witnesses
should their testimony deviate from defense counsel’s recollections. He addresses
the effective-remedy question by claiming, “Arguably, forcing an attorney into
such a situation is not something that can be rectified on direct appeal and likely
would lead to the consequences foreseen in Hickman.”
{¶ 24} Although we acknowledge those concerns, there is no reason that
such a situation could not be rectified in an appeal following final judgment. If that
scenario comes to fruition and the appellate court determines that the trial court’s
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discovery order was improper, then it may grant Glenn a new trial and order the
exclusion of the improperly disclosed statements. In fact, when pressed on the
effective-remedy question during oral argument, the only concrete reasons that
counsel for Glenn set forth to explain why a postjudgment appeal would not be
effective was that Glenn might have to face a second trial and possible additional
pretrial incarceration. But the possibility of retrial does not render the appeal
mechanism ineffective. Those concerns are present in virtually every criminal
appeal; that doesn’t mean they are sufficient to convert every interlocutory order
into a final, appealable order.
{¶ 25} Glenn insists that this case compels a different result because the
order requires him to create summaries of the expected witness testimony. But the
fact that the summaries must be created and disclosed does not establish that any
harm resulting from the order cannot be effectively remedied in a postjudgment
appeal. And in this situation, should Glenn’s attorney choose to comply with the
order, he will have the benefit of knowing in advance that the documents will be
viewed by the prosecution and the ability to prepare them accordingly, which is not
the case when an attorney is simply taking interview notes for his own use. We
therefore fail to understand the dissent’s worries that defense counsel’s providing
summations of alibi-witness information to the state “inevitably” would amount to
the disclosure of counsel’s “mental impressions regarding the witnesses’
statements,” his “trial strategy,” or his “evaluation of the credibility of witnesses,”
such that Glenn will be irreparably harmed in the absence of an immediate appeal.
Dissenting opinion at ¶ 32, 38.
{¶ 26} Moreover, it is not clear at this juncture exactly what information the
trial court would deem sufficient to comply with its order. The state sought “reports
summarizing proposed testimony of defense witnesses.” Although the trial court
issued a broad directive for defense counsel to provide “written summaries of the
statements” made by the witnesses, it also appears to have excluded from its order
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any disclosure of “internal communication of impressions, conclusions, strategy, or
opinions,” incriminating information, and statements intended to be used only for
impeachment. It is possible that summaries providing a greater measure of
specificity regarding the basic timing and location details of the alibi evidence that
each witness is expected to offer would suffice to comply with the court’s directive.
In short, the uncertainty surrounding what the trial court would consider
satisfactory compliance with its order suggests that the order would be better
reviewed after the situation has fully unfolded.
{¶ 27} Glenn also contends that an order compelling disclosure of attorney
work product in a criminal case should be immediately appealable, even if a similar
order in a civil case would not be. Glenn maintains that his counsel is being
compelled “to aid in the conviction of [his] own client” and thus the order warrants
immediate review. But he does not explain how providing summaries of expected
alibi testimony to the state—while withholding any potentially incriminating
information—would necessarily aid in his conviction. Rather, the bulk of the
arguments and supporting caselaw that he presents on that claim relate to his
contention that the order fails to comply with the discovery rules as outlined in
Crim.R. 16 and undermines the adversarial nature of the trial system. But those
arguments go to the merits of the order. Because we conclude that the appellate
court correctly determined that it lacked jurisdiction to review the order at this time,
we expressly do not offer any view as to whether the trial court’s order was proper.
The appropriateness of the order is a question for a later appeal.
{¶ 28} We agree with Glenn that the specifics of a discovery order
challenged on appeal should be evaluated on a case-by-case basis. And we do not
hold that a trial court’s order compelling the disclosure of attorney work product
may never form the basis of an interlocutory appeal. But R.C. 2505.02(B)(4) is
clear that such an order is not immediately appealable unless the appealing party
would be denied an effective remedy in an appeal following the final judgment. In
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view of the nature of the order in this case, which involves defense counsel’s
creation and disclosure of summaries of the expected testimony of alibi witnesses,
we cannot conclude that Glenn would lack a meaningful remedy through an appeal
following final judgment.
III. Conclusion
{¶ 29} Glenn has failed to establish that the discovery order at issue in this
case satisfies the requirements of R.C. 2505.02(B)(4) for being a final order. We
therefore affirm the judgment of the Second District Court of Appeals dismissing
the appeal for lack of jurisdiction, and we remand the case to the trial court for
further proceedings.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 30} I agree with the majority that “a discovery order compelling the
disclosure of attorney work product falls within the rubric of ‘discovery of a
privileged matter’ and is therefore a provisional remedy” within the meaning of
R.C. 2505.02(A)(3). Majority opinion at ¶ 12, quoting R.C. 2505.02(A)(3); see
also Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 11
(Kennedy, J., dissenting). I also agree with the majority that appellant, Samuel
Glenn, has made a sufficient showing that the trial court’s order requiring his
defense counsel to create and disclose written summaries of the oral statements of
defense witnesses may be prohibited by the work-product doctrine.
{¶ 31} However, I part ways with the majority because an appeal following
final judgment in this case would not afford Glenn a meaningful or effective remedy
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and the trial court’s discovery order is therefore a final, appealable order pursuant
to R.C. 2505.02(B)(4). For those reasons, I dissent and would reverse the judgment
of the Second District Court of Appeals and remand this matter to that court for it
to address the merits of Glenn’s appeal.
{¶ 32} This case is not about requiring defense counsel to disclose an
existing written statement of a witness or a recording of a witness’s oral statement.
Instead, we are faced with an order requiring defense counsel to create and disclose
written summaries of witnesses’ oral statements. This will inevitably require
defense counsel to provide his mental impressions regarding the witnesses’
statements, which is attorney work product that is entitled to special protection, see
Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 66 L.Ed.2d 584(1981), and would potentially force counsel to become a witness against Glenn, see
Hickmann v. Taylor, 329 U.S. 495, 512-513, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
{¶ 33} In this matter, Glenn’s defense counsel has been ordered by the trial
court “to provide the State with written summaries of the statements made by the
witnesses [the] defense intends to call regarding defendant’s alibi during defense
counsel’s (and the defense investigator’s) conversations with such individuals.”
Glenn maintains that the only way to comply with that order is for defense counsel
to create the written summaries using counsel’s “own memory and/or notes,
investigative recall, mental process, recall of conversations with witness[es] or even
[Glenn].” He argues that requiring defense counsel to create and disclose privileged
materials violates the public policies acknowledged in Hickman. And Glenn
submits that because the summaries necessarily would “be produced from the
mind” of defense counsel and inaccuracies with respect to the witnesses’ statements
might result, counsel could potentially be called as a witness at trial against Glenn
if the state uses the statements to impeach the defense witnesses. Therefore, he
argues, the harm that would be caused by the trial court’s discovery order could not
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be undone through an appeal, and the order is therefore a final, appealable order
pursuant to R.C. 2505.02. I agree.
{¶ 34} R.C. 2505.02(B)(4) provides that an appellate court has jurisdiction
to review, affirm, modify or reverse “[a]n order that grants or denies a provisional
remedy” when both of the following are satisfied:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
{¶ 35} A provisional remedy is “a proceeding ancillary to an action,”
including a proceeding involving “discovery of privileged matter.” R.C.
2505.02(A)(3). A discovery order compelling the production of attorney work
product constitutes discovery of privileged matter and is therefore a provisional
remedy within the meaning of R.C. 2505.02(A)(3). Smith, 142 Ohio St.3d 411,
2015-Ohio-1480, 31 N.E.3d 633, at ¶ 5-6.
{¶ 36} A discovery order that compels defense counsel to reconstruct and
disclose defense witnesses’ statements relating to the accused’s alibi is a classic
example of the proverbial bell that cannot be unrung, and the damage that would
be caused to the accused’s defense by such an error cannot be remedied on appeal.
See State v. Muncie, 91 Ohio St.3d 440, 451, 746 N.E.2d 1092 (2001). The premise
of the work-product doctrine’s protection of an attorney’s mental processes is that
in effectively representing the client’s interests, “it is essential that a lawyer work
with a certain degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel.” Hickman, 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451.
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As the United States Supreme Court explained in Hickman, “[p]roper preparation
of a client’s case demands that he assemble information, sift what he considers to
be the relevant from the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference.” Id. at 511. Were it to be
otherwise, the court explained, “[a]n attorney’s thoughts, heretofore inviolate,
would not be his own,” id., resulting in inefficiency, gamesmanship, and unfairness
that would inevitably harm the client’s right to the effective assistance of counsel,
see id.
{¶ 37} This is even more true regarding the representation of a person
accused of a crime, whose interest in liberty hangs in the balance. Indeed, the
Supreme Court has recognized that the role of the work-product doctrine “in
assuring the proper functioning of the criminal justice system is even more vital”
than its role in civil litigation. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct.
2160, 45 L.Ed.2d 141 (1975). The court has explained that “[t]he interests of
society and the accused in obtaining a fair and accurate resolution of the question
of guilt or innocence demand that adequate safeguards assure the thorough
preparation and presentation of each side of the case.” Id.{¶ 38} Requiring an accused’s defense counsel to write down and disclose
the oral statements of defense witnesses—particularly alibi witnesses—is
inherently harmful to the accused’s case. This is true even if an appellate court, on
direct appeal from a judgment of conviction, reverses the conviction and remands
for a new trial at which the statements may not be used by the prosecution. The
Supreme Court has recognized that when attorney work product based on
witnesses’ oral statements is produced in discovery, it reveals either
communications protected by the attorney-client privilege or “the attorneys’ mental
processes in evaluating the communications.” Upjohn Co., 449 U.S. at 401, 101
S.Ct. 677, 66 L.Ed.2d 584. Short of replacing the prosecuting attorney with a
special prosecutor and a court’s issuing an order restricting access by the new
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prosecutor to any material that could divulge the mental impressions of defense
counsel, there is no way to assure that the state will not use any information relating
to defense counsel’s mental processes against the accused, such as defense
counsel’s trial strategy or evaluation of the credibility of witnesses. Defense
counsel could also be forced to adopt a different trial strategy, including calling
different witnesses or abandoning an alibi defense altogether, due to the state’s
having had access to counsel’s mental processes and impressions about the case.
And once the state has knowledge of any weaknesses of the defense witnesses,
nothing would preclude the state from seeking additional damaging evidence that
would be, in essence, the fruit of the poisonous tree. In the end, it is impossible to
gauge whether the state will be able to use what it has learned—knowingly or
passively—to the detriment of the accused at the new trial.
{¶ 39} Moreover, the disclosure of defense counsel’s mental processes
involves harms other than the loss of confidentiality. The use of defense counsel’s
written recollection of defense witnesses’ oral statements would, in effect, turn
counsel into a witness against his client and potentially cause him to contribute to
his client’s conviction if the written recollection is used to impeach a defense
witness. And if there were to be a key inconsistency between the witness’s
testimony and counsel’s recollection of what the witness had previously said, there
“would [be] a substantial risk that the lawyer would have to testify,” Nobles at 252
(White, J., concurring), and defense counsel would be forced to destroy the
credibility of the accused’s witnesses. These concerns and corresponding
difficulties were eloquently addressed by Justice Jackson in his concurring opinion
in Hickman:
I can conceive of no practice more demoralizing to the Bar than to
require a lawyer to write out and deliver to his adversary an account
of what witnesses have told him. Even if his recollection were
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perfect, the statement would be his language permeated with his
inferences. Everyone who has tried it knows that it is almost
impossible so fairly to record the expressions and emphasis of a
witness that when he testifies in the environment of the court and
under the influence of the leading question there will not be
departures in some respects. Whenever the testimony of the witness
would differ from the “exact” statement the lawyer had delivered,
the lawyer’s statement would be whipped out to impeach the
witness. Counsel producing his adversary’s “inexact” statement
could lose nothing by saying, “Here is a contradiction, gentlemen of
the jury. I do not know whether it is my adversary or his witness
who is not telling the truth, but one is not.” Of course, if this practice
were adopted, that scene would be repeated over and over again.
The lawyer who delivers such statements often would find himself
branded a deceiver afraid to take the stand to support his own
version of the witness’s conversation with him, or else he will have
to go on the stand to defend his own credibility—perhaps against
that of his chief witness, or possibly even his client.
329 U.S. at 516-517, 67 S.Ct. 385, 91 L.Ed. 451 (Jackson, J., concurring).
{¶ 40} Further, Prof.Cond.R. 3.7(a) generally prohibits an attorney from
serving as counsel at a trial in which he is likely to be called as a witness. As
Comment 1 to that rule explains, “[c]ombining the roles of advocate and witness
can prejudice the tribunal and the opposing party and can also involve a conflict of
interest between the lawyer and client.” Requiring defense counsel to provide a
written recollection of defense witnesses’ oral statements could therefore
necessitate defense counsel’s withdrawal from representation and even deny the
accused his counsel of choice—which is a fundamental constitutional right, see
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United States v. Gonzalez-Lopez, 548 U.S. 140, 147-148, 126 S.Ct. 2557, 2563, 165
L.Ed.2d 409 (2006).
{¶ 41} Compelling counsel to reconstruct oral witness statements from
memory therefore places counsel in a position that is adversarial to his client and
brings counsel’s loyalty into question, causing a breakdown in the attorney-client
relationship that leaves the accused in an untenable position. And although a new
trial may theoretically provide the opportunity for a fair trial free of the error of
improper disclosure, it cannot remedy these substantial harms.
{¶ 42} Because it can never be said with certainty that the harms caused by
compelling defense counsel to reconstruct and disclose oral statements of defense
witnesses from memory could be remedied by a new trial following an appeal, I
would hold that such a discovery order is final and appealable under R.C. 2505.02,
without any further showing of prejudice to the accused.
{¶ 43} Glenn has shown that any harm caused by the discovery order
compelling the disclosure of attorney work product may not be effectively remedied
by an appeal after final judgment. See R.C. 2505.02(B)(4)(b). I would reverse the
judgment of the court of appeals and remand to that court for it to consider the
merits of Glenn’s appeal. Because the majority does not, I dissent.
_________________
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Andrew T. French, Assistant Prosecuting Attorney, for appellee.
Anthony Comunale, for appellant.
_________________
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