DMS Constr. Ents., L.L.C. v. Homick , 2020 Ohio 4919 ( 2020 )

[Cite as DMS Constr. Ents., L.L.C. v. Homick, 2020-Ohio-4919.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DMS CONSTRUCTION :
ENTERPRISES, L.L.C.,
Plaintiff-Appellee, :
No. 109343
v. :
DANIEL J. HOMICK, ET AL. :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: October 15, 2020
Civil Appeal from the Lakewood Municipal Court
Case No. 2019-CVF-375
Appearances:
Hahn Loeser & Parks L.L.P., and Royce R. Remington,
David M. Hopkins, and Jack P. Mills, Jr., for appellee.
Allison Hayes, for appellants.
EILEEN A. GALLAGHER, J.:
Defendants-appellants Daniel and Victoria Homick (collectively, the
“Homicks”) appeal from an order of the Lakewood Municipal Court denying their
motion for a protective order and allowing plaintiff-appellee DMS Construction
Enterprises L.L.C. (“DMS”) to depose the Homicks’ cause-and-origin expert, Adam
Roy, a fire investigator and electrical expert with Fire and Explosion Consultants,
L.L.C. (“Fire and Explosion Consultants”). For the reasons that follow, we dismiss
this appeal.
Factual Background and Procedural History
On September 27, 2018, a fire originated in a condominium unit
located at Winton Place Condominiums, 12700 Lake Avenue, Unit 2803, Lakewood,
Ohio, owned by the Homicks. The Homicks resided in Raleigh, North Carolina and
they rented out the property; however, the property was vacant at the time of the
fire. Liberty Mutual Insurance Company (“Liberty Mutual”) was the Homicks’
insurer for the property.
DMS owned condominium unit 2806, adjacent to the condominium
unit owned by the Homicks. It was also a rental property. The fire caused damage
to DMS’ condominium unit and personal property inside the unit. Due to the fire
damage, DMS was allegedly unable to rent out its unit for five weeks.
On February 15, 2019, DMS filed a complaint in the Lakewood
Municipal Court, asserting claims of breach of contract, negligence and trespass
against the Homicks. DMS alleged that the fire was caused by the Homicks’
negligence, that, by virtue of the fire, the Homicks had breached the bylaws and rules
and regulations of the Winton Place Homeowners Association (of which both DMS
and the Homicks were members) and that the fire was an “unlawful trespass upon
DMS.” DMS sought to recover compensatory damages estimated at $10,500, plus
interest, costs and attorney fees for the damage and losses it sustained as a result of
the fire.
The Homicks filed an answer, denying the material allegations of the
complaint and asserting various affirmative defenses. At that time, the Homicks
were represented by attorney John Rasmussen, whom Liberty Mutual had assigned
to represent them in the action.1 The parties proceeded with discovery. The trial
court set a deadline of November 25, 2019 for the exchange of expert reports.
In June 2019, attorney Rasmussen contacted DMS’ counsel about the
Homicks’ plan to schedule an expert inspection of the property and/or items that
had been removed from the property following the fire. DMS’ counsel indicated that
DMS or its counsel did not need to be present for the inspection provided DMS
received information regarding what occurred during the inspection. In a June 13,
2019 email to DMS’ counsel, attorney Rasmussen confirmed the terms of their
agreement as follows:
As I informed you in our June 6, 2019 conversation, the defendants
have retained an origin and cause fire expert to investigate the fire
circumstances.
We are in the process of coordinating an evidence inspection with the
other parties making claims related to this fire.
You informed me you will not be involved in the expert inspection
process, and do not need to be notified of the inspection date.
I agreed to share with you any evidence developed during the expert
inspection and made available to me.
1 Attorney Rasmussen was an employee of Liberty Mutual.
In a June 17, 2019 email to attorney Rasmussen, DMS’ counsel
further stated:
I informed you that I do not need to be present in Columbus for the
tests performed on the refrigerator. I do want copies of the reports
from those tests. However, Plaintiff is not bound by your investigation
and is allowed to perform its own discovery in this matter.
On August 30, 2019, Roy sent an email to the Homicks’ counsel, DMS’
counsel and others advising that he had been “retained by Liberty Mutual Insurance
Co. to conduct a joint laboratory examination of the evidence items recovered and
collected” from the Homicks’ condominium unit. He identified the date, time and
location of the “joint laboratory examination,” indicated that it would be
“destructive in nature” and requested that anyone who planned to attend the
examination reply to the email. The examination occurred on or around September
23, 2019.
In or around mid-October 2019, attorney Allison Hayes replaced
attorney Rasmussen as co-counsel for the Homicks. Attorney Hayes filed a notice
of substitution of counsel on October 22, 2019.2
On October 16, 2019, DMS served a “subpoena duces tecum without
deposition” on Fire and Explosion Consultants via Federal Express, requesting
production of the following within 14 days of service:
1. Copies of any and all documents, communications, results, and
other items related to the joint laboratory examination of the
2 The Homicks assert that attorney Rasmussen retired; however, there is nothing
in the record from attorney Rasmussen to confirm this. Attorney Rasmussen did not file
a notice of withdrawal of counsel and did not sign the notice of substitution of counsel.
Attorney Hayes was also a Liberty Mutual employee.
evidence items [sic] recovered and collected from the site of the
fire that occurred on August 27, 2018, at 12700 Lake Avenue,
Unit 2803, Lakewood, OH 44107.
2. Copies of any and all documents, communications, and other
items related to the cause and origin of the fire that occurred on
August 27, 2018, at 12700 Lake Avenue, Unit 2803, Lakewood,
OH 44107.
In response to the subpoena, attorney Hayes sent an email to DMS’
counsel stating: “Regardless of whether a report is produced or not, Civ.R. 26(B)(5)
protects any documents you are seeking. No documents will be produced. We will
take it up with the judge, along with the motion for sanctions.”
The Homicks also filed objections to the subpoena served on Fire and
Explosion Consultants, setting forth the following objections to the “documents,
communications, results, and other items” requested in the subpoena:
OBJECTIONS: Overly broad, vague, unduly burdensome, protected by
attorney work product privilege, and undiscoverable pursuant to Civ.R.
26(B)(5). Further answering, and without waiving said objections, all
discoverable and non-privileged documents have and/or will be
produced prior to the expert and discovery deadlines.
No response to the subpoena was provided by Fire and Explosion Consultants.
On October 17, 2019, the Homicks served “supplemental responses”
to certain of the interrogatories and requests for production DMS had previously
served on the Homicks. In their supplemental responses, the Homicks identified
Roy as a testifying expert but indicated that he had not yet prepared an expert
report:3
3 Although she had not yet formally entered an appearance in the case, the
responses and objections were signed by attorney Hayes as counsel for the Homicks.
INTERROGATORY NO. 7: Identify any and all experts, regardless of
whether you intend to call them as a witness at any hearing or trial in
this Lawsuit, with whom you have consulted regarding the Fire
(including, without limitation, the cause of the Fire and all damages
caused by the Fire) and the general topics on which the expert is
prepared to render an opinion.
ANSWER: Adam Roy of Fire and Explosion Consultants, LLC will
testify as to the cause and origin of the fire.
***
INTERROGATORY NO. 10: Identify all inspections and reports of
Defendants’ Condo since September 1, 2015, being sure to identify the
person, company, or business entity that performed or assisted in
performance of each inspection and report.
ANSWER: * * * Defendants’ expert, Adam Roy, of Fire and Explosion
Consultants, LLC, inspected the property on September 23, 2019. Mr.
Roy determined the cause of the fire was not Defendants. Should a
report be produced, it will be timely provided to Plaintiff.
INTERROGATORY NO. 17: Identify the cause and origin of the Fire.
ANSWER: Defendants did not cause the fire and have no duty to
establish who caused the fire other than affirmatively establishing that
they were not the cause. Further answering, upon information and
belie[f] at this time, Defendants believe that the fire originated from the
stove [top] and that the sole cause of the [f]ire was the negligence of
Winton Place employee, John Rosko, who left an exhaust fan box on
top of the stove when two burners were in the “on” position at the time
that the fire started.
REQUEST FOR PRODUCTION NO. 1: Produce copies of any and all
information, items, and documents provided to any expert witness
retained by Homick for purposes of this lawsuit.
RESPONSE: Objection — work product.
REQUEST FOR PRODUCTION NO. 2: Produce copies of any and all
information, items, and documents that concern, relate to, or otherwise
evidence reports, opinions of fact and/or law, and conclusions of fact
and/or law that have been provided to you by any person, with the sole
exceptions of your counsel of record in this Lawsuit, in connection with
the investigation of the claims and/or factual assertion set forth in this
Lawsuit. This Request includes, but is not limited to, any and all
documents concerning, relating to, or otherwise evidencing reports —
including any and all drafts, preliminary, final, and supplemental
reports — that have been prepared by any person you have contacted
or consulted as an expert witness, regardless of whether or not you
intend to utilize that person as an expert witness in this Lawsuit.
RESPONSE: Objection. This request seeks information that is subject
to attorney-client privilege and work product exclusion. Without
waiving, Defendants have not yet received Adam Roy’s expert report.
We reserve the right to supplement this response pursuant to the Ohio
Rules of Civil Procedure, Court Order and Local Court Rules.
On October 21, 2019, DMS filed a “written notice of discovery
dispute.” DMS asserted that although the Homicks’ former counsel, attorney
Rasmussen, had agreed to provide DMS with a copy of “any expert report” and had
agreed that “all evidence developed during [Roy’s] expert inspection would be
shared with [DMS],” the Homicks’ new counsel, attorney Hayes, “continues to
interfere with [Fire and Explosion Consultants’] production of the information”
requested in DMS’ subpoena.
The Homicks filed a combined opposition to the notice of discovery
dispute and a motion for sanctions, arguing that the information sought in the
subpoena was protected from disclosure by the “attorney work product privilege”
and was “undiscoverable pursuant to Civ.R. 26(B)(5).” The Homicks also sought an
award of attorney fees against DMS as a sanction for “engaging in frivolous and
unnecessary motion practice” and failing to provide a copy of the subpoena served
on DMS to the Homicks’ counsel. In support of her opposition, attorney Hayes
submitted an affidavit in which she averred that she was not provided with a copy of
the subpoena to Fire and Explosion Consultants4 and that she had informed DMS’
counsel that (1) Roy had been hired by the Homicks (not Liberty Mutual), (2) all
communications with Roy went through the Homicks’ counsel (not Liberty Mutual)
and (3) the Homicks would timely produce an expert report if Roy would be
testifying at trial. Attorney Hayes further averred that she had offered to provide
DMS with an affidavit confirming the facts surrounding Roy’s retention and a
privilege log for communications with Roy.5
DMS filed a motion to strike and/or deny the Homicks’ combined
opposition to DMS’ notice of discovery dispute and motion for sanctions, disputing
the Homicks’ claims.
The trial court scheduled a hearing to address the discovery dispute.
Because the discovery dispute involved documents that were purportedly in the
possession of Fire and Explosion Consultants and/or Liberty Mutual, neither of
which were parties to the action, the trial court ordered the parties to give notice of
4 Although attorney Hayes avers in her affidavit that she did not receive a copy of
the subpoena served on Fire and Explosion Consultants, she was not counsel of record at
the time the subpoena was served. On October 21, 2019, DMS filed a notice of service of
the subpoena with a certificate of service indicating that a copy of the notice had been
served on attorney Rasmussen via regular U.S. mail on October 17, 2019. Attorney
Rasmussen and attorney Hayes were part of the same firm. Further, the record contains
an email from attorney Mills to attorney Hayes, dated October 17, 2019, attaching an
electronic copy of the subpoena.
5 There is no indication in the record that a privilege log was ever produced.
Because there is no privilege log, we do not know what, if any, documents or other
materials exist that the Homicks contend are protected from discovery by the work
product doctrine or consulting expert privilege, including whether Roy prepared a report
regarding the “joint laboratory examination” or his opinion(s) or conclusion(s) regarding
the cause and origin of the fire.
the hearing to counsel for those entities “in the event” those entities wished to “raise
any objections involved in the discovery dispute between the parties.” The hearing
was held on November 7, 2019. Counsel for DMS and the Homicks attended the
hearing. No representatives of Fire and Explosion Consultants and no other
representatives of Liberty Mutual6 attended the hearing.
Although the issue was not fully resolved at the hearing, some
progress appeared to have been made. According to the trial court, the Homicks’
counsel stated at the hearing that she did not object to the subpoena served on Fire
and Explosion Consultants or the taking of Roy’s deposition by DMS; however, she
stated that DMS would have to subpoena Roy for deposition because he was not an
employee of the Homicks and she “could not require Mr. Roy to attend any
deposition or pretrial conference without a subpoena.” Following the hearing, the
trial court issued a journal entry, detailing what had occurred at the hearing and the
plan, moving forward, as follows:
Two (2) primary issues were raised and disputed by the parties[:] 1)
whether Adam Roy was an agent, employee, or witness hired by the
defendant[s] and/or the defendant[s’] law firm and 2) the identity of
any persons present when Adam Roy conducted tests on the cause and
origin of the fire that is the basis of the claim in this case. Although
counsel for the defendant[s] asserted that all parties were given notice
of the date and time of the testing, plaintiff's counsel asserted that they
relied on the representation by prior defense [c]ounsel John
Rasmussen that personal attendance by plaintiff’s counsel or
representative was not required and all information and results from
the testing would be provided to the plaintiff. Current defense counsel
stated that she was not aware of the representation made by Mr.
6 As stated above, attorney Hayes was an employee of Liberty Mutual.
Rasmussen, although members of the same law firm, and that she did
not have any information about the location of Mr. Rasmussen.
Notwithstanding the initial discovery dispute, defendant[s’] counsel
stated that she did not object to the subpoena served on Adam Roy or
the taking of his deposition by the plaintiff. The record shows that a
final pretrial conference is scheduled for December 9, 2019 at 1:30 p.m.
This hearing is continued to that date and time with Adam Roy to be
present at the hearing. Counsel for the parties shall resolve the
specifics of securing Mr. Roy’s attendance and whether or not a
subpoena is required in light of defendant[s’] counsel[’s] assertion that
Mr. Roy was hired as a defense witness. In the event a deposition of
Mr. Roy can be completed prior to December 9, 2019 with production
of the requested documents from him, his attendance may be excused
from the December 9, 2019 hearing by agreement of counsel.
The Homicks’ counsel thereafter backed away from her purported
statement that she did not object to the subpoena served on Fire and Explosion
Consultants or the taking of Roy’s deposition.7 On November 12, 2019, attorney
Hayes sent an email to DMS’ counsel, indicating that she had just spoken with Roy
and that he had indicated to her that (1) he had never spoken to anyone at Liberty
Mutual other than attorney Rasmussen and attorney Hayes, (2) Roy’s
understanding was that he was to serve as an expert for the Homicks and that
Liberty Mutual was paying his fees pursuant to its insurance agreement with the
Homicks, (3) Roy’s examination of the evidence was limited to a visual inspection
7 In their appellate briefs, the Homicks assert that “[t]he Homicks’ attorney never
agreed to produce Adam Roy for deposition regarding his opinions, only the scope of his
retention.” However, the Homicks did not challenge the trial court’s statement (made in
its November 7, 2019 journal entry) that “defendant[s’] counsel stated that she did not
object to the subpoena served on Adam Roy or the taking of his deposition by the plaintiff”
in their subsequently filed motion for protective order. On the other hand, there is also
nothing in the record to suggest that attorney Hayes had agreed that she would not object
to particular questions asked of Roy during any deposition by DMS.
and photographs, (4) Roy did not conduct any “testing” and his inspection was not
destructive, (5) Roy had no documentation from the inspection other than his
photographs and “his own illegible notes” and (6) the evidence was still available for
inspection “in the same condition it was in during his inspection.” In an effort “to
avoid unnecessary expenses involved in attending a hearing on December 9,”
Attorney Hayes offered, “[w]ithout waiving privilege,” to provide an affidavit from
Roy “affirming” these facts, to “organize a telephone call” with Roy during which
DMS’ counsel could inquire about “the scope of his retention, and what his
inspection entailed, but not his opinions” and provide copies of the photographs Roy
took during the inspection. She also indicated that the evidence was being stored in
Roy’s storage unit in Akron and that DMS could “have access to the evidence for any
expert [DMS] retain[s] to inspect.”
Although there is no indication in the record that the Homicks ever
amended their discovery responses to withdraw their identification of Roy as a
testifying expert, attorney Hayes asserted in her email that “[t]he Homicks utilized
Mr. Roy as a consulting expert but opted not to utilize him as a testifying expert in
this matter.” Attorney Hayes further indicated that the Homicks would not pay for
Roy to attend the December 9, 2019 hearing and that if DMS “opt[ed] to proceed to
the December 9 hearing, Mr. Roy will be submitting his invoice for attending the
hearing to Plaintiff.”
DMS proceeded with efforts to schedule Roy’s deposition. On
November 22, 2019, DMS’ counsel sent an email to attorney Hayes, requesting dates
when she was available for Roy’s deposition and stating that DMS “also requires all
information in Mr. Roy’s files, including all communications with Mr. Roy.”
On November 25, 2019, the Homicks filed a motion for protective
order to preclude DMS from “subpoenaing file materials and eliciting expert
testimony” from Roy. The Homicks also requested that the trial court enter an order
requiring DMS to subpoena Roy for the December 9, 2019 hearing if DMS did not
agree with the Homicks’ proposed resolution of the parties’ discovery dispute as set
forth in attorney Hayes’ November 12, 2019 email. The Homicks argued that Roy
was an expert they “consulted with and retained in anticipation of litigation” and
that Roy’s file materials and “opinions and testimony” were work product protected
from discovery under Civ.R. 26(B)(3) and Civ.R. 26(B)(5)(a). The Homicks further
asserted that attorney Rasmussen was “the sole person in charge of communicating
with and retaining Roy” and argued that even if Liberty Mutual had retained Roy
directly, his file materials and opinions would still be “privileged” because Liberty
Mutual’s only involvement in the case was to assist in the defense of its insured. The
Homicks stated that it was “manifestly unfair and not permissible under the
attorney-client privilege, the work product doctrine and Civ.R. 26 for Plaintiff to
attempt to subpoena privileged information from Defendants’ expert or elicit
testimony regarding his opinions to attempt to establish a liability argument against
Defendants.”
In support of their motion, the Homicks attached an affidavit from
Daisy Tran, the Liberty Mutual litigation claims specialist assigned to the matter, in
which she averred that she had had no contact or communications with Roy or
anyone else at Fire and Explosion Consultants. The Homicks also attached an
affidavit from Roy in which he averred that (1) attorney Rasmussen had asked him
to perform “an inspection on the items damaged by the subject fire,” (2) it was his
understanding that he was serving as “a consultant/expert in defense of Daniel and
Victoria Homick” and Liberty Mutual was paying his fees pursuant to its insurance
agreement with the Homicks, (3) he had never communicated with anyone from
Liberty Mutual other than attorneys Rasmussen and Hayes and (4) during the
inspection, he “did not perform any destructive testing that significantly altered the
condition of the items inspected” and “[t]he evidence is still available for
inspection.”
DMS opposed the motion. DMS argued that it was entitled to obtain
any documents or other materials responsive to its subpoena and to depose Roy
because the Homicks had already agreed to provide the documents, information and
deposition testimony DMS sought from Roy, i.e., attorney Rasmussen had agreed to
provide “a copy of all evidence discovered during the joint laboratory testing
performed by Mr. Roy” and attorney Hayes had stated “in open [c]ourt on the
record” at the November 6, 2019 hearing that she did not object to the subpoena or
the taking of Roy’s deposition. DMS also contended that (1) the Homicks had failed
to establish the information sought was protected from disclosure by the work
product doctrine because Roy had been retained by, and prepared a report for,
Liberty Mutual rather than the Homicks, (2) there was “good cause” under Civ.R.
26(B)(3) to allow discovery of Roy’s information even if the work product doctrine
applied and (3) because the Homicks had identified Roy as a testifying expert, DMS
was entitled to depose Roy under Civ.R. 26(B)(5)(b).
On December 16, 2019, the trial court denied the Homicks’ motion for
a protective order and held that DMS could proceed with Roy’s deposition.
Although the Homicks had requested, in their motion for protective order, that DMS
be precluded both from subpoenaing documents from Fire and Explosion
Consultants and deposing Roy, the trial court addressed only DMS’ request to
depose Roy in its December 16, 2019 order.8 The trial court determined that the
Homicks had failed to prove that Roy’s testimony was protected by the “work
product privilege” and that even if the “work product privilege” applied, DMS had
shown “good cause” to obtain his testimony under Civ.R. 26(B)(3). The trial court
explained:
In their motion for protective order, the defendants admit that
Mr. Roy is the defendants’ expert, but seek to prevent his deposition.
The defendants assert that the testimony of Mr. Roy is within the scope
of attorney/client and work product privileges. * * *
From the language of [former Civ.R. 26(B)(3)], the work product
privilege is not absolute, but may be discovered upon a showing of good
cause. * * *
It is unclear from the record who employs Mr. Roy. His own
conflicting statements in the record, as well as representations by
defense counsel, raise a factual issue in this regard. The affidavit
8 The trial court stated: “The defendants’ motion for a protective order is limited
to the testimony of Mr. Roy. Although defense counsel admitted during the pretrial
conference that there are also documents involved that defense counsel was willing to
provide to the plaintiff’s counsel, she continues to withhold these documents,
notwithstanding prior request by the plaintiff.
offered by defense counsel does not resolve the issue due to the
ambiguities * * * in the record which could only be resolved by his
testimony with the opportunity for the plaintiff to cross examine Mr.
Roy on the issue.
As the general rule as stated by Civil Rule 26, counsel are
required to provide discovery. The burden is on the defendants as the
moving party to show that the testimony o[f] Mr. Roy is not
discoverable or otherwise protected by privilege. * * * As neither party
presented witnesses regarding the motion for a protective order, the
issue was left for the court to decide based on the record in this case.
Based upon the record and without Mr. Roy’s own testimony under
oath, as well as other information, the court finds that the defendants
have failed to prove that the testimony of Mr. Roy is protected under
the work product privilege.
In the present case the plaintiff asserts that prior defense
counsel, John Rasmussen, agreed in June, 2019, prior to the inspection
and examination, to share “any evidence developed during the expert
inspection.” In addition, the laboratory examination would be
“destructive in nature.” In reliance on Mr. Rasmussen’s representation
to plaintiff’s counsel, the plaintiff did not have anyone attend the
inspection/examination. Due to the destructive nature of the
examination, the defendants cannot renege on the agreement to share
the information with the plaintiff. Although current defense counsel
disputes this prior agreement, notwithstanding the emails between
counsel, Mr. Rasmussen has not attended either of the past two (2)
pretrial conferences, both of which directly involved the
representations by Mr. Rasmussen to share the information obtained
by Mr. Roy from the examination.
From the record, even if the defendants could prove the work
product privilege applied, based upon prior representations of defense
counsel, John Rasmussen, and relied on by plaintiff’s counsel, the court
finds that the plaintiff has met its burden of showing good cause within
the meaning of Civil Rule 26(B)(3).
Applying the standard set forth in Squire, Sanders & Dempsey
v. Givaudan Flavors Corp., the testimony of Adam Roy, regarding the
cause of the fire is directly at issue in this case. In addition, the need
for the information is both compelling and cannot be obtained
elsewhere due to the destructive nature of the experiments conducted
by Mr. Roy. Based on the foregoing, the motion for a protective order
is overruled and the plaintiff is permitted to proceed with the
deposition of Adam Roy.
(Footnotes omitted.)
The trial court further stated that “nothing in [its] order” would
prevent the Homicks “from raising timely objections to any questions to Adam Roy
on the grounds of attorney-client privilege.” The trial court indicated that, “[i]n the
event of such questions,” Roy would be “required to answer the questions and the
specific questions and answers shall be excluded from the remainder of the
deposition and submitted to the court under seal for an in camera inspection and
hearing.”9
The Homicks appealed, raising a single assignment of error for
review:
The trial court erred in denying the Homicks’ motion for protective
order and ordering the Homicks’ non-testifying consulting expert to
appear and give deposition testimony concerning his opinions formed
in anticipation of litigation.
Law and Analysis
The Homicks contend that Roy was a nontestifying consulting expert
retained in connection with litigation. They argue that as a nontestifying consulting
expert, Roy’s opinions are “privileged” work product under former Civ.R. 26(B)(3)
and (B)(5)(a) and that the trial court erred in allowing DMS to depose him and
“subpoena [his] work product.”
9 The trialcourt did not specifically address DMS’ argument that DMS was entitled
to depose Roy as a testifying expert pursuant to former Civ.R 26(B)(5)(b).
The Work Product Doctrine and Consulting Expert Privilege
The work product doctrine precludes discovery of the mental
impressions, conclusions, opinions, strategies and legal theories, both tangible and
intangible, generated or commissioned by counsel in anticipation of litigation or
preparation for trial. Squire, Sanders & Dempsey, L.L.P., v. Givaudan Flavors
Corp., 127 Ohio St. 3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 56-60. The
consulting expert “privilege” is a subset of the work product doctrine. An expert
consultant’s work product — the expert consultant’s knowledge of the facts, opinions
and conclusions — are part of the work product of the attorney who retained the
expert. As a part of its limits on discovery, Rule 26(B) sets forth protections from
discovery for both attorney work product and the work product of experts. “In Ohio,
protection for an attorney’s work product is codified in Civ.R. 26, which notably
recognizes work product as separate from privileged matters.” Burnham v.
Cleveland Clinic, 151 Ohio St. 3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 18.
Unlike the attorney-client privilege, which belongs to the client and
can only be waived by the client, work product protection belongs to the attorney
and an attorney’s actions can waive work product protection, including by voluntary
disclosure of information to an adverse party. See, e.g., In re Grand Jury, 4th Dist.
Washington Nos. 93CA09, 93CA10 and 93CA12, 1995 Ohio App. LEXIS 2567, 41-
42, 49 (June 1, 1995) (“If a party from whom discovery is sought has disclosed such
materials to third persons, including counsel representing interests adverse to such
party from whom discovery is sought, the privilege is destroyed as to such party.”),
citing 36 Ohio Jurisprudence 3d, Discovery and Depositions, Section 36, at 52
(1982); see also Komorowski v. John P. Hildebrand Co., L.P.A., 8th Dist. Cuyahoga
No. 101500, 2015-Ohio-1295, ¶ 27 (“‘[D]isclosure to an adversary waives the work
product protection as to items actually disclosed.’”), quoting Grumman Aerospace
Corp. v. Titanium Metals Corp., 91 F.R.D. 84, 90 (E.D.N.Y. 1981).
Further, Civ.R. 26(B) allows work product protection to be removed
by an opposing party’s demonstration of sufficient need for protected materials or
information. See, e.g., Burnham at ¶ 18; Squire, Sanders & Dempsey, 127 Ohio
St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 57, 60; Jackson v. Greger, 110 Ohio
St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16; Adamson v. Buckenmeyer, 6th
Dist. Lucas No. L-20-1014, 2020-Ohio-4241, ¶ 43.
Former Civ.R. 26(B)(3)10 governs discovery of work product and “trial
preparation materials.” It provides in relevant part:
Subject to the provisions of subdivision (B)(5) of this rule, a party may
obtain discovery of documents, electronically stored information and
tangible things prepared in anticipation of litigation or for trial by or
for another party or by or for that other party’s representative
(including his attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing of good cause therefor.
The purpose of the work-product rule is “(1) to preserve the right of
attorneys to prepare cases for trial with that degree of privacy necessary to
encourage them to prepare their cases thoroughly and to investigate not only the
10Civ.R. 26(B)(3) in effect at the time of the trial court’s December 16, 2019 order
was renumbered as Civ.R. 26(B)(4) effective July 1, 2020.
favorable but the unfavorable aspects of such cases and (2) to prevent an attorney
from taking undue advantage of his adversary’s industry or efforts.” Jackson at ¶ 16.
‘“[A] showing of good cause * * * requires demonstration of need for the materials
— i.e., a showing that the materials, or information they contain, are relevant and
otherwise unavailable.”’ Squire, Sanders & Dempsey at ¶ 57, quoting Jackson at
¶ 16.
Former Civ.R. 26(B)(5)11 specifically addresses discovery from
experts retained in anticipation of litigation or in preparation for trial. Former
Civ.R. 26(B)(5)(a) states, with respect to nontestifying, consulting experts:
Subject to the provisions of division (B)(5)(b) of this rule and Civ.R. 35
(B), a party may discover facts known or opinions held by an expert
retained or specially employed by another party in anticipation of
litigation or preparation for trial only upon a showing that the party
seeking discovery is unable without undue hardship to obtain facts and
opinions on the same subject by other means or upon a showing of
other exceptional circumstances indicating that denial of discovery
would cause manifest injustice.
Former Civ.R. 26(B)(5)(b) further provides, with respect to persons identified as
testifying experts:
As an alternative or in addition to obtaining discovery under division
(B)(5)(a) of this rule, a party by means of interrogatories may require
any other party (i) to identify each person whom the other party expects
to call as an expert witness at trial, and (ii) to state the subject matter
on which the expert is expected to testify. Thereafter, any party may
discover from the expert or the other party facts known or opinions
held by the expert which are relevant to the stated subject matter.
Discovery of the expert’s opinions and the grounds therefor is restricted
11
The language of Civ.R. 26(B)(5) in effect at the time of the trial court’s December
16, 2019 order was modified and renumbered as Civ.R. 26(B)(7) effective July 1, 2020.
to those previously given to the other party or those to be given on
direct examination at trial.
“The consulting expert ‘privilege’ is intended to prevent the
‘unfairness that could result from allowing an opposing party to reap the benefits of
another party’s efforts and expense.’” Nunley v. Nationwide Children’s Hosp., 10th
Dist. Franklin No. 13AP-425, 2013-Ohio-5330, ¶ 16, quoting Plymovent Corp. v. Air
Technology Solutions, Inc., 243 F.R.D. 139 (D.N.J. 2007). Although discovery of
facts known or opinions held by a nontestifying expert retained in anticipation of
litigation or preparation for trial is permitted only upon a showing of “undue
hardship to obtain facts and opinions on the same subject” or “other exceptional
circumstances indicating that denial of discovery would cause manifest injustice,”
once a party identifies an expert as an expert witness it expects to testify at trial, that
action entitles any other party to discover the facts known or opinions held by the
expert that are relevant to the stated subject matter to the extent the expert’s
opinions have been “previously given to the other party” or are to be given on direct
examination at trial. Former Civ.R. 26(B)(5)(a)-(b); Adamson, 2020-Ohio-4241, at
¶ 42, citing Masters v. Kraft Foods Global, Inc., 6th Dist. Lucas No. L-11-1273, 2012-
Ohio-5325, ¶ 13-15. “The duty to cooperate with discovery under [such]
circumstances is not protected [by] the attorney work-product doctrine.” Adamson
at ¶ 42, citing Masters at ¶ 15.
The party claiming that requested discovery is protected from
disclosure by the work product doctrine or the consulting expert “privilege” has the
burden of establishing that it applies. See, e.g., In re Special Grand Jury
Investigation, 10th Dist. Franklin No. 18AP-730, 2019-Ohio-4014, ¶ 12; Owens v.
ACS Hotels, L.L.C., 9th Dist. Summit No. 27787, 2016-Ohio-5506, ¶ 9; Stegman v.
Nickels, 6th Dist. Erie No. E-05-069, 2006-Ohio-4918, ¶ 14, citing Peyko v.
Frederick, 25 Ohio St. 3d 164, 166, 495 N.E.2d 918 (1986). The burden of proving
that the need for documents or information overrides the work product protection
rests with the party seeking disclosure. See, e.g., Squire, Sanders & Dempsey, 127
Ohio St. 3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 57, citing Jackson, 110 Ohio
St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16; Galati v. Pettorini, 8th Dist.
Cuyahoga No. 101712, 2015-Ohio-1305, ¶ 26; In re Special Grand Jury
Investigation at ¶ 12.
Jurisdiction
Before reviewing the merits, we must first consider whether we have
jurisdiction to hear this appeal. This court has a duty to examine, sua sponte,
potential deficiencies in jurisdiction. See, e.g., Scheel v. Rock Ohio Caesars
Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7; Arch Bay
Holdings, L.L.C., v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-3036, ¶ 9.
Appellate courts can only “review and affirm, modify, or reverse judgments or final
orders.” Article IV, Section 3(B)(2), Ohio Constitution; see also R.C. 2501.02,
2505.03(A). “If an order is not final and appealable, then an appellate court has no
jurisdiction to review the matter and the appeal must be dismissed.” Assn. of
Cleveland Firefighters, #93 v. Campbell, 8th Dist. Cuyahoga No. 84148, 2005-
Ohio-1841, ¶ 6; see also Scanlon v. Scanlon, 8th Dist. Cuyahoga No. 97724, 2012-
Ohio-2514, ¶ 5 (“In the absence of a final, appealable order, the appellate court does
not possess jurisdiction to review the matter and must dismiss the case sua
sponte.”). Before this court can exercise jurisdiction over an appeal, the trial court’s
order must meet the finality requirements of R.C. 2505.02. CitiMortgage, Inc. v.
Roznowski, 139 Ohio St. 3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10.
On September 3, 2020, we ordered the parties to submit
supplemental briefs addressing the issue of whether the order appealed from
constitutes a final, appealable order. In their supplemental brief, the Homicks assert
that the order at issue in this case is a final, appealable order under R.C.
2505.02(B)(4). DMS contends that the order is not a final order.
Pursuant to R.C. 2505.02(B)(4), an order that grants or denies a
provisional remedy is a final order that may be appealed if: (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” and (b) “[t]he 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.”
Discovery orders are generally interlocutory orders that are neither
final nor appealable. Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio
St.3d 118, 120-121, 676 N.E.2d 890 (1997). However, under R.C. 2505.02(A)(3), a
“provisional remedy” is defined to include “discovery of privileged matter.” Smith
v. Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 5. Further, “[a]ny
order compelling the production of privileged or protected materials * * * satisfies
R.C. 2505.02(B)(4)(a) because it would be impossible to later obtain a judgment
denying the motion to compel disclosure if the party has already disclosed the
materials.” Burnham, 151 Ohio St. 3d 356, 2016-Ohio-8000, 89 N.E.3d 536, at ¶ 21;
see also Phillips v. Vesuvius USA Corp., 8th Dist. Cuyahoga No. 108888, 2020-
Ohio-3285, ¶ 14.
In their supplemental brief, the Homicks contend that the trial court’s
order is a final order under R.C. 2505.02(B)(4) because “[t]he underlying issue in
this case is the compelled production of attorney-client/work product evidence.”
The Homicks assert that “[a]ppellants were ordered to produce Adam Roy for
deposition despite the existence of a clear applicable precedent of attorney-client
relationship and work product privileges” and that “the law in Ohio is that when an
order is issued compelling the production of privileged materials * * * a final,
appealable order is made.”
In its supplemental brief, DMS argues that the trial court’s order does
not satisfy the requirements of R.C. 2505.02(B)(4) because: (1) the trial court’s
decision does not “compel the production” of privileged information and contains
safeguards to prevent the disclosure of privileged information and (2) the Homicks
have failed to establish that any of the requested information at issue is privileged
because (a) the Homicks had already identified Roy as a testifying expert, (b) Roy
was hired by Liberty Mutual, not the Homicks and (c) the Homicks’ counsel had
previously agreed to allow Roy to be deposed.
A party is not required to conclusively prove the existence of
privileged or protected information as a precondition to appellate review under R.C.
2505.02(B)(4). Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12 (1st
Dist.). “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.’” Id., quoting Bennett v. Martin, 186 Ohio App. 3d 412,
2009-Ohio-6195, 928 N.E.2d 763, ¶ 35 (10th Dist.). However, a party must make a
“colorable claim” that information or materials subject to discovery are privileged or
otherwise protected from discovery in order to qualify as a provisional remedy.
Byrd at ¶ 12; see also Phillips, 2020-Ohio-3285, at ¶ 12; Loukinas v. State Farm
Mut. Auto. Ins. Co., 1st Dist. Hamilton No. C-180462, 2019-Ohio-3300, ¶ 17.
A “colorable claim” is one that is seemingly genuine or legally valid,
i.e., a “plausible legal claim” that has “a reasonable chance of being valid if the legal
basis is generally correct and the facts can be proven.” The Legal Information
Institute, Wex, https://www.law.cornell.edu/wex/colorable_claim (accessed Sept.
22, 2020). The case law provides little guidance as to what should be considered in
determining whether a party has made a “colorable claim” that information or
materials are privileged or otherwise protected from discovery. However, it appears
that, at a minimum, the appellant must make a plausible argument that is based on
the particular facts at issue. See, e.g., Burnham, 151 Ohio St. 3d 356, 2016-Ohio-
8000, 89 N.E.3d 536, at ¶ 3, 29 (appellant made a “colorable claim” that incident
report was governed by the attorney-client privilege where it “plausibly alleged” that
incident report contained privileged information).
The Ohio Supreme Court has held that any “order compelling the
production of materials alleged to be protected by the attorney-client privilege is a
final, appealable order under R.C. 2505.02(B)(4).” Burnham at ¶ 30. However, no
such blanket rule of appealability applies with regard to orders involving the
discovery of information or materials allegedly protected from disclosure by the
work product doctrine or consulting expert privilege.
In Chen, the Ohio Supreme Court held that the appellate court lacked
jurisdiction to consider the merits of a trial court order compelling discovery of a
surveillance video over an attorney work product objection because the appellants
failed to establish that the requirements of R.C. 2505.02(B)(4)(b) had been met. 142
Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 1-2, 6-7. On appeal, the Tenth
District affirmed the trial court’s decision compelling discovery of the video and held
that the order was final and appealable because the surveillance video was “attorney
work product subject to discovery for good cause.” Id. at ¶ 3. The Tenth District did
not specifically determine whether the appellants would have a meaningful and
effective remedy through appeal after final judgment. Id.
The Ohio Supreme Court ordered the parties to show cause why the
appeal should not be dismissed for lack of a final, appealable order. Id. at ¶ 6. In
response, the appellants did not show why they would not be afforded a meaningful
and effective remedy through a postjudgment appeal. Id. at ¶ 6, 8. The court held
that, therefore, the appellate courts lacked jurisdiction and could not reach the
merits of the appeal. Id. at ¶ 6-7.
In determining that the appellate courts lacked jurisdiction to review
the order, the Ohio Supreme Court stated in Chen:
The court of appeals correctly observed that the order in this case
determined the discovery issue against appellants * * * preventing a
judgment in their favor as to that issue. This is not the entire
analysis. [Appellants] have never argued, much less established, that
they would not be afforded a meaningful or effective remedy through
an appeal after a final judgment is entered by the trial court resolving
the entire case. They did not address the issue in any of their briefs
here or in the court of appeals. * * * We therefore cannot reach the
merits of this appeal. There is no indication that the requirement
in R.C. 2505.02(B)(4)(b) has been met.
* * * For an order granting discovery of privileged matter to be a final
order, an appellant must affirmatively establish that an immediate
appeal is necessary in order to afford a meaningful and effective
remedy. R.C. 2505.02(B)(4)(b). This burden falls on the party who
knocks on the courthouse doors asking for interlocutory relief.
Rendering a judgment on the merits of this appeal would signal to
litigants that if they are unhappy with discovery orders that might
result in their losing their case, they can spend a few years appealing
the matter all the way up to this court without proving a real need to do
so. [Appellants] failed to establish why an immediate appeal is
necessary here, and we must presume an appeal in the ordinary course
would be meaningful and effective.
This ruling does not adopt a new rule, nor does it make an appeal
from an order compelling disclosure of privileged material more
difficult to maintain. An order compelling disclosure of privileged
material that would truly render a postjudgment appeal meaningless
or ineffective may still be considered on an immediate appeal.
Id. at ¶ 6-9.
 In Burnham, the Ohio Supreme Court accepted jurisdiction “to
resolve whether an order compelling the production of documents allegedly
protected by the attorney-client privilege is a final, appealable order under R.C.
2505.02(B)(4)” and “to clarify [its] holding regarding privilege, the attorney-work-
product doctrine, and R.C. 2505.02(B)(4)(b) in Chen.” 151 Ohio St. 3d 356, 2016-
Ohio-8000, 89 N.E.3d 536, at ¶ 1. In Burnham, a slip-and-fall case, the trial court
rejected the defendant hospital’s argument that its incident report was protected by
the attorney-client privilege and not discoverable and ordered the hospital to
produce it. Id. at ¶ 5-6. The hospital appealed the trial court’s order. Id. at ¶ 7. This
court dismissed the appeal for lack of jurisdiction based on Chen, reasoning that the
hospital had failed to affirmatively establish that an immediate appeal was necessary
and that it would be sufficiently prejudiced by the disclosure to satisfy R.C.
2505.02(B)(4)(b). Id. The Ohio Supreme Court reversed the dismissal of the appeal
and held that the trial court’s order requiring the production of documents allegedly
protected by the attorney-client privilege was immediately appealable. Id. at ¶ 3.
Burnham was a split decision: three justices concurred in a lead
opinion, three justices concurred in judgment only and one justice dissented. The
justices were split 3-3 on the issue of whether Chen should be limited to cases
claiming work product protection or overruled in its entirety. The lead opinion did
not explicitly overrule Chen and, instead, “limit[ed] it solely to its facts.” Id. at ¶ 9.
The opinion went into great detail about the differences between the attorney-client
privilege and the work product doctrine, stating that the work product doctrine
“does not necessarily involve the inherent, extrajudicial harm involved with a breach
of the attorney-client privilege” and that “the same guarantee of confidentiality is
not at risk with an attorney’s work product” such that order compelling the
production of allegedly protected work product, unlike an order compelling the
production of allegedly privileged attorney-client communications, would not
automatically satisfy R.C. 2505.02(B)(4)(b):
We hold that an order requiring the production of information
protected by the attorney-client privilege causes harm and prejudice
that inherently cannot be meaningfully or effectively remedied by a
later appeal. Thus, a discovery order that is alleged to breach the
confidentiality guaranteed by the attorney-client privilege satisfies R.C.
2505.02(B)(4)(b) and is a final, appealable order that is potentially
subject to immediate review. Other discovery protections that do not
involve common-law, constitutional, or statutory guarantees of
confidentiality, such as the attorney-work-product doctrine, may
require a showing under R.C. 2505.02(B)(4)(b) beyond the mere
statement that the matter is privileged. Our holding in Chen is limited
to the latter context.
Id. at ¶ 2, 26; see also id. at ¶ 16-19.
The lead opinion emphasized “the explicitly limited nature of [the
court’s] holding in Chen” stated that because Chen “involved a failure to respond to
the issue being adjudicated” and involved only the work product doctrine and not
attorney-client privilege, it did not “control the outcome” in Burnham. Id. at ¶ 14-
15, 27. It further explained:
The attorney-client privilege and the attorney-work-product doctrine
provide different levels of protection over distinct interests, meaning
that orders forcing disclosure in these two types of discovery disputes
do not necessarily have the same result that allows an immediate
appeal.
***
Any order compelling the production of privileged or protected
materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be
impossible to later obtain a judgment denying the motion to compel
disclosure if the party has already disclosed the materials. But the
irreversible nature of the order alone does not satisfy R.C.
2505.02(B)(4)(b), which requires consideration of whether an appeal
after judgment can rectify the damage of an erroneous trial-court
ruling. * * * Given the differing interests and protections of the
attorney-client privilege and the attorney-work-product doctrine, the
damage that needs to be rectified and the need for immediate appeal
may differ as well.
***
Exposure of the information that is to be protected by attorney-
client privilege destroys the confidentiality of possibly highly personal
or sensitive information that must be presumed to be unreachable.
Taylor v. Sheldon, 172 Ohio St. 118, 121, 173 N.E.2d 892 (1961). * * *
But the same guarantee of confidentiality is not at risk with an
attorney’s work product. * * * [A]ny harm from disclosure would likely
relate to the case being litigated, meaning that appellate review would
more likely provide appropriate relief. * * * This is not to say that
compelling the disclosure of an attorney’s work product pursuant to
Civ.R. 26(B)(3) would never satisfy R.C. 2505.02(B)(4)(b) and require
an interlocutory appeal. But it does not necessarily involve the
inherent, extrajudicial harm involved with a breach of the attorney-
client privilege.
Id. at ¶ 15, 21, 25-26; see also In re Grand Jury Proceeding of Doe, 150 Ohio St. 3d
398, 2016-Ohio-8001, 82 N.E.3d 1115, ¶ 22 (“When a party is compelled to produce
material protected by the attorney-client privilege, harm extends beyond the actual
case being litigated and causes the loss of a right that cannot be rectified by a later
appeal, and R.C. 2505.02(B)(4)(b) is accordingly satisfied.”).12
12In re Grand Jury Proceeding of Doe, decided after Burnham, the Ohio Supreme
Court declined to address, when holding that an order enforcing a grand jury subpoena
and ordering production of alleged privileged information was a final order pursuant to
R.C. 2505.02(B)(4), “whether the R.C. 2505.02(B)(4)(b) requirement is satisfied with
The three justices who concurred in judgment only did not believe a
different rule should apply to appeals of cases involving attorney-client privilege and
claims of work product protection and maintained that both should be immediately
appealable. Burnham at ¶ 36.
Thus, although a trial court’s ruling ordering the disclosure of
materials allegedly covered by the attorney-client privilege automatically warrants
an immediate appeal, Burnham at ¶ 2, 25, 29, appellate courts must decide on a
case-by-case basis whether a trial court ruling ordering the disclosure of information
allegedly protected by the work product doctrine is appealable based on whether the
appellant has shown that a postjudgment appeal would be “truly * * * meaningless
or ineffective”; “the irreversible nature of the order alone does not satisfy R.C.
2505.02(B)(4)(b).” Burnham at ¶ 21, 26-27; Chen at ¶ 9; see also In re Special
Grand Jury Investigation, 2018-Ohio-760, 107 N.E.3d 793, ¶ 13, 15 (10th Dist.2018)
(finding that the court had no appellate jurisdiction because “appellants have not
addressed, either in appellate briefs or at oral argument, whether an appeal is
necessary in order to afford a meaningful and effective remedy in this case”).
Although the Homicks assert in their supplemental brief that “[t]he
underlying issue in this case is the compelled production of attorney-client/work
product evidence,” there is, in fact, no claim of attorney-client privilege at issue in
this appeal. The Homicks’ sole assignment of error is limited to the application of
regard to any information alleged to be protected by the attorney-work-product doctrine
or the common-interest doctrine” in the case. Id. at ¶ 22-23, fn. 3.
the consulting expert “privilege”/work product doctrine, i.e., the Homicks contend
that the trial court erred “in ordering the Homicks’ nontestifying consulting expert
to appear and give deposition testimony concerning his opinions formed in
litigation.” Likewise, the Homicks identify the sole issue for appellate review as
“[w]hether a party’s non-testifying consulting expert is protected from disclosing
opinions for in anticipation of litigation under the work product privilege and Civ.R.
26?” The Homicks make no mention of attorney-client privilege in either of their
merits briefs.
Further, it is clear that to the extent the trial court’s order addressed
discovery of allegedly privileged attorney-client communications, it is not a final,
appealable order under R.C. 2505.02(B)(4). The trial court’s order did not “compel”
the production of attorney-client privileged communications. The trial court
expressly stated in its December 16, 2019 order that “[n]othing” in the order would
prevent the Homicks “from raising timely objections to any questions to Adam Roy
on the grounds of attorney-client privilege” and that “[i]n the event of such
questions,” Roy would be “required to answer the questions” and that the questions
and Roy’s answers would be “submitted to the court under seal for an in camera
inspection and hearing.” An order for a trial court’s in camera inspection of allegedly
privileged or protected testimony or materials is not an order that grants a
provisional remedy. See, e.g., Daher v. Cuyahoga Community College Dist., 155
Ohio St. 3d 271, 2018-Ohio-4462, 120 N.E.3d 830, ¶ 14, 16 (discovery order requiring
disclosure of grand jury materials to trial court for in camera review did not grant a
provisional remedy and was not a final appealable order); Pietrangelo v. Polyone
Corp., 9th Dist. Lorain No. 19CA011550, 2020-Ohio-2776, ¶ 9 (“an order that
‘direct[s] a witness opposing a discovery request to submit the requested materials
to an in camera review so that the court may determine their discoverable nature is
not a final appealable order pursuant to R.C. 2505.02’”), quoting Bell v. Mt. Sinai
Med. Ctr., 67 Ohio St. 3d 60, 616 N.E.2d 181 (1993), syllabus; Citibank, N.A. v. Hine,
2017-Ohio-5537, 93 N.E.3d 108, ¶ 15-17 (4th Dist.) (trial court order requiring
individual to appear for deposition was not a final, appealable order where trial court
“ha[d] not yet determined whether any of the information sought * * * is privileged”
and “[c]ounsel may object to questions posed * * * so the trial court can determine
the applicability of any privilege.”). Only where there is an order mandating
production of the information or materials will there be a final order over which the
appellate court has jurisdiction. Daher at ¶ 14, 16; Nationwide Mut. Fire Ins. Co. v.
Jones, 4th Dist. Scioto No. 15CA3709, 2017-Ohio-4244, ¶ 15 (trial court order
denying motion to stay discovery did not satisfy R.C. 2505.04(B)(4) because the
order did not compel appellant to produce any particular information and ‘“Ohio
appellate courts will not review orders that fall short of ordering the disclosure of
privileged information’”), quoting Paul R. Rice, et al., 1 Attorney-Client Privilege:
State Law Ohio, Section 11:32 (June 2016 Update).13
13In addition, there is nothing in the record to indicate that Roy was a party to, or
received, any privileged attorney-client communications in this matter. Although the
Homicks assert in their supplemental brief that they objected to the subpoena duces
tecum served on Fire and Explosion Consultation on the grounds that it sought
information “subject to the attorney-client privilege and work product privileges,” in the
With respect to the Homicks’ claim of work product protection,
although the Homicks need only make a colorable claim that the work product
doctrine or consulting expert privilege applies to Roy’s testimony, the record here is
insufficiently developed to show that Roy’s deposition would result in the disclosure
of any privileged or protected information. It is clear that Roy was initially
“identif[ied]” by the Homicks as “a person whom the [Homicks] expect[ed] to call
as an expert witness at trial.” Former Civ.R. 26(B)(5)(b). In their supplemental
answers to DMS’ interrogatories, the Homicks stated: “Adam Roy of Fire and
Explosion Consultants, LLC will testify as to the cause and origin of the fire.”14 Even
assuming the Homicks were entitled to withdraw their identification of Roy as a
testifying expert and redesignate him as a nontestifying, consulting expert (and even
assuming they did so when they failed to timely produce an expert report), the
Homicks had already agreed, through their initial counsel, to share with DMS “any
written objections they filed in response to the subpoena, the Homicks objected to the
subpoena only on the grounds that it was “[o]verly broad, vague, unduly burdensome,
protected by attorney work product privilege, and undiscoverable pursuant to Civ.R.
26(B)(5).” No objection was raised to the subpoena based on attorney-client privilege. In
their motion for protective order, the Homicks did not set forth any facts to suggest that
Roy possesses any information or documents protected from disclosure by the attorney-
client privilege. Roy did not address the issue in his affidavit the Homicks submitted in
support of their motion for protective order and neither the Homicks nor their counsel
submitted an affidavit addressing that issue in support of the motion.
14 For purposes of determining whether the Homicks have made a “colorable
claim” that Roy’s testimony is protected from discovery by the work product doctrine or
the consulting expert privilege, it is immaterial whether Liberty Mutual (the Homicks’
insurer), the Homicks themselves or the Homicks’ counsel (who were employees of
Liberty Mutual), in fact, retained Roy for purpose of defending the Homicks. And there
is no evidence in the record that any of Roy’s opinions or conclusions were shared with
anyone from Liberty Mutual other than the Homicks’ counsel.
evidence developed” during Roy’s examination of the evidence and had already
disclosed to DMS, in their supplemental responses to DMS’ discovery requests,
Roy’s opinion and conclusion that he had “determined the cause of the fire was not
Defendants,” intentionally relinquishing any protection afforded by the work
product doctrine as to those subjects. See, e.g., Adamson, 2020-Ohio-4241, at ¶ 46
(finding appellant’s act of “formally identif[ying]” two experts as testifying experts
“waived any work-product protection” as to the experts’ opinions and that appellee
had demonstrated good cause to discover the underlying facts and documents
supporting the experts’ opinions that appellant did not cause the vehicle accident at
issue and was not liable to appellee on her claims). The Homicks have not claimed
(much less demonstrated) that Roy has factual information regarding the case
beyond the “evidence developed during the inspection” — which they had agreed to
provide to DMS — or that Roy developed any other opinions or conclusions relating
to this matter beyond the determination that “the cause of the fire was not
Defendants,” which was previously disclosed to DMS. Further, Roy’s determination
that “the cause of the fire was not Defendants” was not harmful to, but rather
supported, the Homicks’ defense.
We can certainly envision circumstances and situations in which a
party could establish that an order allowing the discovery of information claimed to
be protected by the work product doctrine or the consulting expert privilege would
satisfy the requirements of R.C. 2505.02(B)(4)(b). See, e.g., In re Special Grand
Jury Investigation of Medicaid Fraud & Nursing Homes, 10th Dist. Franklin No.
18AP-730, 2019-Ohio-2532, ¶ 23-25 (trial court order compelling production of
documents in grand jury proceedings over work product objection was immediately
appealable where appellants “cogently argue[d]” that “once disclosed, the
information in question cannot be neutralized, * * * the state will forever have the
use of it in subsequent litigation before the trial court” and “[n]o subsequent appeal
* * * could remove this unfair or improper advantage gained”); Summit Park Apts.,
L.L.C. v. Great Lakes Reinsurance, 2016-Ohio-1514, 49 N.E.3d 363, ¶ 11 (10th Dist.
2016) (trial court order to disclose claimed work product was a final, appealable
order because appellants had argued in their appellate brief that they would be
denied an effective remedy if not permitted immediate review “because the privilege
is lost once the documents are exposed to opposing counsel” and “even if use of the
documents as evidence were later forbidden or limited, the knowledge of what the
documents contained would still be in the minds of counsel for [appellee] and would
still potentially affect the way the attorneys litigate the case”). However, the
Homicks have not shown why, under the particular facts and circumstances of this
case, they would not be afforded a meaningful or effective remedy by an appeal
following final judgment of the trial court’s order.
In their reply brief on the merits, the Homicks assert that the trial
court’s order could result in “irreparable harm to the Homicks” because DMS could
“amend[] its Complaint to include new theories of liability.” They also assert that it
would be “unfair” to allow DMS to “depose Mr. Roy, on Liberty Mutual’s dime,
regarding his opinions without spending one penny to retain its own expert.”
However, the trial court’s order does not address those issues.
The trial court’s order only authorized a discovery deposition of Roy.
It did not address whether DMS would be permitted to use Roy’s testimony or any
information obtained from Roy at trial or otherwise in the case. Further, although
the Homicks had requested that DMS be required to pay for Roy’s attendance at the
December 9, 2019 hearing, there is nothing in the record to indicate that Roy or the
Homicks requested that DMS be required to pay for Roy’s attendance at deposition.
Former Civ.R. 26(B)(5)(e) stated:
The court may require that the party seeking discovery under division
(B)(5)(b) of this rule pay the expert a reasonable fee for time spent in
responding to discovery, and, with respect to discovery permitted
under division (B)(5)(a) of this rule, may require a party to pay another
party a fair portion of the fees and expenses incurred by the latter party
in obtaining facts and opinions from the expert.
Following the July 1, 2020 amendments to the Civil Rules, that issue
is now addressed by Civ.R. 26(B)(7)(h)(iii), which states: “The party seeking
discovery under division (B)(7) of this rule [governing disclosure of expert
testimony] shall pay the expert a reasonable fee for time spent in deposition.”
Accordingly, DMS would not be deposing Roy on “Liberty Mutual’s dime.” Further,
even if the trial court had ordered the Homicks to pay Roy’s fee for his deposition,
this is not a circumstance with respect to which the Homicks would not be afforded
a meaningful or effective remedy by an appeal following final judgment. Any error
by the trial court with respect to that issue could be effectively remedied following
final judgment.
In arguing that the trial court’s order constituted a final, appealable
order in their supplemental brief on the issue of jurisdiction, the Homicks simply
recited the requirements of R.C. 2505.02(B)(4), asserted that the trial court’s order
met those requirements and stated:
This constitutes a final, appealable order because a party who is
compelled to produce privileged documents, including, but not limited
to, attorney-client communications, will be left without an adequate
remedy because once production occurs, the bell will have already been
rung and the privilege cannot be restored through a later appeal. * * *
Simply put, if the party compelled to produce the privileged document
is not afforded the right to an immediate appeal, there can be no
remedy after trial has concluded or the matter is otherwise resolved
because there can be no return to the time when the privileged
information was not disclosed to the adversarial party.
The Homicks did not discuss Burnham or Chen.
The Homicks’ argument in support of jurisdiction, as stated in their
supplemental brief, does not match the facts of this case. As stated above, the trial
court’s order did not compel the production of any documents and did not compel
the disclosure of any attorney-client privileged communications. At issue here is the
trial court’s decision to allow the discovery deposition of Roy to proceed over the
Homicks’ objections based on the work product doctrine and the consulting expert
privilege.
The Ohio Supreme Court has held that an appellant appealing a
discovery order involving the production of information or materials allegedly
protected by the work product doctrine must “affirmatively establish” that the order
meets the requirements of R.C. 2505.02(B)(4), including the unavailability of a
meaningful remedy by means of appeal from the ultimate final judgment in the
matter at issue. Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8.
Despite our specific request that they do so, the Homicks have not shown that this
is such a case. Rather, here, as in Chen, the appellants failed to meaningfully
“respond to the issue being adjudicated.” Burnham, 151 Ohio St. 3d 356, 2016-Ohio-
8000, 89 N.E.3d 536, at ¶ 14, citing Chen at ¶ 6.
Where an appellant fails to establish why an immediate appeal is
necessary in a particular case, the appellate court must presume an appeal in the
ordinary course would be meaningful and effective. Chen at ¶ 8. We, therefore, lack
jurisdiction over the trial court’s discovery order and must dismiss the Homicks’
appeal. Id. at ¶ 7-8; see also In re Special Grand Jury Investigation, 2018-Ohio-
760, 107 N.E.3d 793, at ¶ 11-17.
Appeal dismissed.
It is ordered that appellee recover from appellants the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR