Clinical Technology, Inc. v. NeuroTherm, Inc. ( 2013 )

[Cite as Clinical Technology, Inc. v. NeuroTherm, Inc., 2013-Ohio-3739.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99745
CLINICAL TECHNOLOGY, INC.
PLAINTIFF-APPELLEE
vs.
NEUROTHERM, INC.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-789859
BEFORE: E.A. Gallagher, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 29, 2013
ATTORNEYS FOR APPELLANT
Matthew Mendoza
Mitchell G. Blair
Matthew A. Chiricosta
Calfee, Halter & Griswold L.L.P.
The Calfee Building
1405 East Sixth Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Jeremy Gilman
Matthew D. Gurbach
Lori H. Welker
Benesch, Friedlander, Coplan & Aronoff
200 Public Square
Suite 2300
Cleveland, OH 44114-2378
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant, NeuroTherm Inc., appeals the order of the Cuyahoga
County Court of Common Pleas granting a motion to compel discovery filed by
plaintiff-appellee, Clinical Technology, Inc., and denying NeuroTherm’s own motion for
a protective order regarding the same document. For the reasons stated herein, we
affirm.
{¶2} Clinical Technology, Inc. (“C.T.I.”) filed a complaint against NeuroTherm
on August 22, 2012 alleging that NeuroTherm had failed to pay a sales commission due
and owing to C.T.I. C.T.I. filed an amended complaint on November 6, 2012 further
asserting that NeuroTherm orchestrated the defection of certain C.T.I. sales
representatives and misappropriated C.T.I. trade secrets. The catalyst of the dispute
between C.T.I. and NeuroTherm surrounded C.T.I. vice president Dominic Verrilli III
resigning from C.T.I. to join NeuroTherm in February 2011. In connection with the
departure of Verrilli and other sales staff, C.T.I. asserted claims including
misappropriation of trade secrets, tortious interference with contracts, tortious
interference with business relations, civil conspiracy and aiding and abetting.
NeuroTherm answered and filed a counterclaim asserting breach of contract and an
action on account.
{¶3} During the course of discovery, it was learned that in February 2011
NeuroTherm CEO Laurence Hicks asked Verrilli to prepare a narrative, chronological
summary (the “Verrilli timeline”) of the events leading to his departure from C.T.I. and
his joining NeuroTherm. On March 6, 2013 the trial court conducted a pretrial
concerning a discovery dispute regarding the Verrilli timeline and ordered the parties to
submit briefs on the matter. On March 14, 2013 C.T.I. filed a motion to compel the
production of the timeline and NeuroTherm filed a motion for a protective order
regarding the document. On March 20, 2013 the trial court issued a journal entry
granting C.T.I.’s motion to compel and denying NeuroTherm’s motion for a protective
order. This appeal followed.
{¶4} NeuroTherm argues in its sole assignment of error that the trial court
abused its discretion in denying its motion for a protective order and granting C.T.I.’s
motion to compel. We review a trial court’s ruling on a motion to compel for an abuse
of discretion. Wolk v. Paino, 8th Dist. Cuyahoga No. 93095, 2010-Ohio-1755, ¶ 19,
citing DeMeo v. Provident Bank, 8th Dist. Cuyahoga No. 89442, 2008-Ohio-2936. The
same standard applies to our review of a trial court’s decision to deny a motion for a
protective order. Scanlon v. Scanlon, 8th Dist. Nos. 99028 and 99052,
2013-Ohio-2694, ¶ 24. An abuse of discretion “implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404
N.E.2d 144 (1980).
{¶5} NeuroTherm argues that the Verrilli timeline is protected from discovery
under the work-product privilege found in Civ.R. 26(B)(3) which states in relevant part:
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.
{¶6} The burden of showing that a document is confidential or privileged rests
with the party seeking to exclude it. Li v. Olympic Steel, Inc., 8th Dist. Cuyahoga No.
97286, 2012-Ohio-603, ¶ 9. The work-product claim requires that there exist a “real
and substantial possibility of litigation” at the time the documents were written.
Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003-Ohio-3358, 790
N.E.2d 817, ¶ 27, (8th Dist.). This court has held that the work-product privilege may
not be invoked based on mere anticipation of future litigation as a result of general
business experience or a general belief that litigation is a possibility. Id.{¶7} Furthermore, “[m]aterial prepared by nonattorneys, even if prepared in
anticipation of ligation, is protected from discovery only where the material is prepared
exclusively and in specific response to imminent litigation.” Id. at ¶ 27, citing
Occidental Chem. Corp. v. OHM Remediation Serv. Corp., 175 F.R.D. 431, 435
(W.D.N.Y.1997).
{¶8} In the present case, the Verrilli timeline was not prepared by an attorney or
at the direction of an attorney. The timeline was prepared roughly a year and a half
before litigation ensued. In an affidavit attached in support of NeuroTherm’s motion
for protective order, NeuroTherm CEO Laurence Hicks averred that based on
communications exchanged with C.T.I. President Dennis Forchione and his son Jason
Forchione, Hicks perceived C.T.I. to be angry with NeuroTherm over Dominic Verrilli
and other former C.T.I. employees joining NeuroTherm. Based solely upon this
perceived anger, Hicks averred that he believed litigation was imminent and, therefore,
instructed Dominic Verrilli to prepare the Verrilli timeline.
{¶9} The above facts fail to demonstrate a “real and substantial possibility of
litigation” or that the Verrilli timeline was prepared “in specific response to imminent
litigation” as contemplated by this court in Perfection Corp. v. Travelers Cas. & Sur.
Though Hicks may have perceived anger from C.T.I., anger, by itself, is not a basis for
litigation. Hicks fails to offer an explanation for why he reasonably believed the
perceived anger would translate to litigation. In light of the present record we cannot
conclude that the trial court abused its discretion in granting C.T.I.’s motion to compel
and denying NeuroTherm’s motion for a protective order.
{¶10} Appellant’s sole assignment of error is overruled.
{¶11} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR