State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid , 2016 Ohio 1516 ( 2016 )


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  • [Cite as State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid, 2016-Ohio-1516.]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State of Ohio ex rel. Ohio                            :
    Academy of Nursing Homes, Inc. et al.,
    :
    Relators-Appellees,
    :                           No. 16AP-102
    v.                                                                         (C.P.C. No. 03CVH11-12970)
    :
    Ohio Department of Medicaid et al.,                                       (REGULAR CALENDAR)
    :
    Respondents-Appellants.
    :
    D E C I S I O N
    Rendered on April 12, 2016
    Geoffrey E. Webster and Bryan M. Pritikin, for appellees.
    Michael DeWine, Attorney General, Rebecca L. Thomas and
    Ara Mekhjian, for appellants.
    APPEAL from the Franklin County Court of Common Pleas
    ON MOTION TO DISMISS
    KLATT, J.
    {¶ 1}     Respondents-appellants, the Ohio Department of Medicaid and its director
    ("the department"), as successors-in-interest to the Ohio Department of Job and Family
    Services and its director, appeal from a discovery order entered by the Franklin County
    Court of Common Pleas. The trial court granted a motion by relators-appellees, the Ohio
    Academy of Nursing Homes, Inc., and a number of individual nursing home care
    providers ("the providers"), compelling discovery by requiring the deposition of certain
    persons.
    {¶ 2} The providers began this action with a complaint seeking declaratory and
    injunctive relief. Their fifth amended complaint modifies the form of action to a petition
    No. 16AP-102                                                                               2
    in mandamus seeking a writ from the Franklin County Court of Common Pleas. Although
    the substance of the action is not relevant to this appeal, it generally involves the state
    agencies' rate-setting mechanism for Medicare reimbursement.             In the course of
    discovery, the providers sought to depose certain individuals to obtain information about
    the rate-setting process.    The department opposed discovery from certain proposed
    deponents, claiming that the requested information was privileged as attorney-client
    communication.      The trial court granted a motion to compel discovery, and the
    department has timely appealed. The providers now seek to dismiss the appeal for lack of
    a final appealable order.
    {¶ 3} The providers argue that the order compelling discovery is not a final
    appealable order because it does not meet the requirements of R.C. 2505.02 for
    interlocutory appeals from discovery orders. The providers argue that the order fails to
    meet the standard for two reasons: (1) the trial court's order does not actually determine
    the action with respect to the provisional remedy of discovery, and (2) the department
    failed to preserve its claim of attorney-client privilege in the trial court, thereby waiving
    any assertion of attorney-client privilege.
    {¶ 4} An appellate court's jurisdiction is limited to the review of final appealable
    orders, judgments, or decrees. R.C. 2505.03(A); State ex rel. Bd. of State Teachers
    Retirement System of Ohio v. Davis, 
    113 Ohio St. 3d 410
    , 2007-Ohio-2205, ¶ 44. A final
    appealable order is one that grants or denies a provisional remedy and both (1) in effect
    determines the action with respect to that provisional remedy and prevents a judgment in
    favor of the appealing party with respect to the provisional remedy and (2) leaves the
    appealing party without a meaningful or effective remedy through appeal following a
    subsequent final judgment. R.C. 2505.02(B)(4).
    {¶ 5} Although most discovery proceedings do not qualify as provisional remedies
    and cannot give rise to an interlocutory appeal, R.C. 2505.02(A)(3) specifically notes that
    a proceeding that results in discovery of privileged matter is a provisional remedy. Irvin
    v. Eichenberger, 10th Dist. No. 15AP-824, 2015-Ohio-4400, ¶ 8. The provision of a right
    to an interlocutory appeal from such orders, which is in direct derogation of the general
    non-appealability of most discovery orders, stems from the fact that protected
    information, once released, cannot be nullified: " '[T]he party resisting discovery will
    have no adequate remedy on appeal. The proverbial bell cannot be unrung and an appeal
    No. 16AP-102                                                                              3
    after final judgment on the merits will not rectify the damage.' " Dispatch Printing Co. v.
    Recovery Ltd. Partnership, 
    166 Ohio App. 3d 118
    , 2006-Ohio-1347 (1oth Dist.), ¶ 8,
    quoting Gibson-Myers & Assoc. v. Pearce, 9th Dist. No. 19358 (Oct. 27, 1999).
    {¶ 6} While upholding that general principle of interlocutory appeals regarding
    discovery of privileged matter, the Supreme Court of Ohio has recently emphasized that
    an appellant in such cases much affirmatively demonstrate that it 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. Smith v. Chen, 
    142 Ohio St. 3d 411
    ,
    2015-Ohio-1480, ¶ 5-6.
    {¶ 7} The providers first argue that the discovery order in this case does not
    effectively determine the provisional remedy because the order merely allows the
    providers to conduct depositions, and no material has yet been produced by the proposed
    questioning. In the absence of any production in the form of documents or testimony, the
    providers argue, the information has yet to be provided and therefore the matter is not
    ripe for review. For this proposition they cite our holding in Irvin, in which we addressed
    a trial court order compelling production of allegedly privileged documents for in-camera
    review by the court.
    {¶ 8} This case is easily distinguishable from our decision in Irvin. In that case,
    the trial court granted a limited motion to compel discovery, subject to in-camera review
    by the trial court before the release of any potential privileged information to the moving
    party. After confirming that communication between an attorney and client would be
    privileged matter pursuant to R.C. 2505.02(A)(3), we noted that the trial court had "yet to
    compel appellant to disclose the purportedly privileged documents.         The magistrate
    merely ordered submission of the documents for in-camera review by the court. The
    court may then order production of the documents to opposing counsel, or to the contrary
    find that the documents are indeed privileged, not relevant, or otherwise undiscoverable.
    In other words, the bell is not yet on the point of being rung, and the appeal is
    premature." 
    Id. at ¶
    9.
    {¶ 9} The depositions actually ordered in the present case contain no such
    additional filter or safeguard against the release of the allegedly privileged material. An
    order that compels the final and unfettered discovery of privileged material, even if that
    discovery has yet to take place pursuant to the order, has effectively determined the action
    No. 16AP-102                                                                              4
    with respect to the provisional remedy. It determines the discovery dispute between the
    parties and requires the final disclosure of allegedly confidential matter in the due course
    of the party's compliance with the court's discovery order. Such an order satisfies the
    second part of the R.C. 2505.02(B)(4) test. Bennett v. Martin, 10th Dist. No. 09AP-294,
    2009-Ohio-6195, ¶ 36. Irvin is inapplicable on these facts and the trial court's discovery
    order is appealable.
    {¶ 10} We also find that the providers' arguments regarding waiver are not well-
    taken, and have been previously rejected by this court in Bennett:
    An appellate court's jurisdiction cannot depend upon whether
    or not a party has waived the right to assert an error on
    appeal. Otherwise, an appellate court would be forced to
    decide the merits of the appeal in order to determine whether
    it has the power to hear and decide the merits of the appeal.
    To avoid this conundrum, appellate courts have reasoned that
    as long as an appellant presents a "colorable claim" that the
    documents subject to a discovery order are privileged and/or
    confidential, the proceeding that resulted in that order
    qualifies as a "provisional remedy." Callahan v. Akron Gen.
    Med. Ctr.¸9th Dist. No. Civ.A. 22387, 2005-Ohio-5103, ¶ 29;
    Schottenstein, Zox & Dunn v. McKibben, 10th Dist. No. 01AP-
    1384, 2002-Ohio-5075, ¶ 19; Cuervo v. Snell (Sept. 26 2000),
    10th Dist. No. 99Ap-1442. * * * Here, where the trial court has
    ordered defendants to turn over the [allegedly privileged
    matter], the order unquestionably requires the disclosure of
    confidential matter. * * * Therefore, we conclude that the trial
    court's order satisfies the first part of the R.C. 2505.02 (B)(4)
    test.
    Bennett at ¶ 35. The providers may argue under the merits of the appeal whether the
    agencies have waived their claim of privilege in this matter. A deficiency in the merits of
    the appeal does not deprive us of jurisdiction and does not require dismissal.
    {¶ 11} Based on the foregoing, the providers' motion to dismiss the appeal for lack
    of jurisdiction is denied.
    Motion to dismiss denied.
    DORRIAN, P.J., and SADLER, J., concur.
    

Document Info

Docket Number: 16AP-102

Citation Numbers: 2016 Ohio 1516

Judges: Klatt

Filed Date: 4/12/2016

Precedential Status: Precedential

Modified Date: 4/12/2016