Tucker v. Compudyne Corp. , 2014 Ohio 3818 ( 2014 )

[Cite as Tucker v. Compudyne Corp., 2014-Ohio-3818.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100554
BETTY TUCKER, INDIVIDUALLY, ETC., ET AL.
PLAINTIFFS-APPELLEES
vs.
COMPUDYNE CORPORATION, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED AS MODIFIED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-09-711927
BEFORE: S. Gallagher, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEYS FOR APPELLANTS
Kevin C. Alexandersen
Eric H. Mann
Colleen A. Mountcastle
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, OH 44115
ATTORNEYS FOR APPELLEES
For Betty Tucker, Individually, etc., et al.
Brian M. White
The Mismas Law Firm, L.L.C.
38052 Euclid Avenue
Suite 104
Willoughby, OH 44094
Also listed:
For Crane Co.
Kristen M. Delsole
K & L Gates, L.L.P.
K & L Center
210 6th Avenue
Pittsburgh, PA 15222
Weil McClain Division of The Marley Co.
Laura K. Hong
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant CompuDyne Corporation (“CompuDyne”) appeals the
decision of the Cuyahoga County Court of Common Pleas that denied in part a motion for
a protective order. For the reasons stated herein, we affirm the decision as modified.
{¶2} This action was commenced on December 3, 2009, by Michael Tucker
(“Tucker”), Betty Tucker, and their minor children, alleging that Tucker contracted
mesothelioma as a result of being exposed to asbestos-containing products manufactured
by or otherwise connected to the various defendants, including CompuDyne.
Unfortunately, Tucker died of mesothelioma on January 5, 2011. Afterward, Betty
Tucker, as the executrix of the estate of Michael Tucker, filed an amended complaint that
included a wrongful death cause of action.
{¶3} In December 2009 and January 2010, a video deposition was taken of Tucker.
Tucker testified that he was employed by Steelman Cincinnati during a period of less
than a year in 1980 and 1981. During this time he worked as a laborer assisting
technicians in servicing and repairing boilers at various work sites. There is evidence
that at three of the work sites, Tucker worked on York-Shipley boilers, from which he
believed he was exposed to asbestos.
{¶4} William Rock, the chief financial officer for CompuDyne from 1996 until
2008, represented in his affidavit that CompuDyne is a financial holding company with
no employees and that CompuDyne has never manufactured or sold asbestos or
asbestos-containing products. Rock represented that on May 29, 1969, York-Shipley,
Inc. (DE), which he understood to be in existence since at least 1943 as a manufacturer of
boilers, merged into CompuDyne and that CompuDyne was the surviving corporate
entity. CompuDyne, by virtue of the 1969 merger, acquired all liabilities of
York-Shipley, Inc. (DE), up to May 29, 1969. CompuDyne concedes it is responsible for
boilers manufactured by York-Shipley, Inc. (DE), up to May 1969.
{¶5} Rock indicated in his affidavit that following the merger, all of the assets of
York-Shipley, Inc. (DE), were transferred to York-Shipley, Inc. (PA), which had been
incorporated as a subsidiary of CompuDyne, and that thereafter, York-Shipley, Inc. (PA),
manufactured boilers and other parts. The affidavit of Rock sets forth the subsequent
corporate history of York-Shipley, Inc. (PA), and states that CompuDyne was dissolved
on March 1, 1993. Various transaction documents and annual reports were attached to
Rock’s affidavit. Rock was also deposed in the matter.
{¶6} In responding to interrogatories, CompuDyne indicated that it had acquired
York-Shipley, Inc. (DE), and referenced the articles of merger. CompuDyne also
referenced pre-May 1969 manufactured boilers by York- Shipley, Inc., as
asbestos-containing products that were placed into the stream of commerce. However,
no specifics concerning the brand or trade names and dates of production were provided.
Further, rather than responding to interrogatory No. 5 with specific information regarding
asbestos-containing products that were manufactured and sold by its subsidiaries and/or
predecessors, CompuDyne responded that it had not engaged in such a practice.
{¶7} In the course of the proceedings, CompuDyne filed a motion for summary
judgment that was denied by the trial court. The trial court found there is sufficient
evidence that Tucker worked on York-Shipley boilers and was exposed to asbestos
contained in the boilers.
{¶8} During discovery, CompuDyne inadvertently disclosed a 17-page document
titled “CompuDyne Annual Review National Coordinating Counsel January 20, 2011,”
which is referred to as “the Litigation Analysis.” The Litigation Analysis was prepared
by Scott Henry, CompuDyne’s national coordinating counsel. CompuDyne filed a
motion for protective order seeking to protect the Litigation Analysis from discovery
under the attorney-client privilege and the work-product doctrine. The motion was
opposed by plaintiffs-appellees.
{¶9} The trial court conducted an in camera inspection of the Litigation Analysis
and held a hearing on the motion. At the hearing, the trial court found that the Litigation
Analysis was a privileged document, but found the protection afforded to paragraphs
18(a) and (b) was obviated based upon plaintiffs’ need for the information and inability to
obtain it elsewhere. The court suggested that if CompuDyne chose to amend its answers
to interrogatories or to propose a stipulation to comport with the information contained in
paragraphs 18(a) and (b) of the Litigation Analysis, then there would be no need for
disclosure.
{¶10} After the parties failed to reach an agreed stipulation, CompuDyne requested
a written ruling from the trial court. Thereafter, the trial court issued an order that denied
the motion for protective order as to paragraphs 18(a) and (b). Paragraph 18(a) sets forth
a history of York-Shipley, Inc., including its production of boilers for commercial
application, and sets forth the manner in which asbestos was used in various products
manufactured by York-Shipley, including the specific asbestos-containing material used
inside its boilers. Paragraph 18(b) sets forth a corporate history of CompuDyne in regard
to its relationship with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA), which
includes the subsidiaries and predecessors of CompuDyne.
{¶11} The trial court recognized that much of the Litigation Analysis had no
relevance to this case. However, the court found that paragraphs 18(a) and (b) were
subject to disclosure, stating in part:
The Court finds these two paragraphs deal directly with issues
germane to this case.
* * * Throughout the litigation of this case, Defendant CompuDyne
insisted that it has no documents concerning its relationship with
York-Shipley, the manufacturer of the asbestos laden boilers to which
Plaintiff’s decedent was allegedly exposed. At the hearing before the
Court on October 15, 2013, counsel for CompuDyne informed the court that
there was no living person with sufficient knowledge of [CompuDyne’s]
corporate history to affirm, deny or explain the relationship between
CompuDyne and York-Shipley or the presence of asbestos in York-Shipley
boilers. More significantly, in responses to discovery propounded by
Plaintiffs, [CompuDyne] denied the existence of any subsidiaries and/or
predecessors.
Consequently, Defendant CompuDyne Corporation has failed to
demonstrate good cause to protect paragraphs 18(a) and (b) from discovery
and from presentation as evidence at trial. Disclosure and use at trial is
warranted, since there is no other source of this critical information.
{¶12} CompuDyne appeals this ruling. Under its two assignments of error,
CompuDyne claims the trial court erred in ordering the disclosure of privileged
information contained in paragraphs 18(a) and (b) of the Litigation Analysis because (1)
“[t]he document was prepared by national coordinating counsel for CompuDyne and is
protected by the attorney-client privilege[,]” and (2) “plaintiffs failed to show good cause
under Civ.R. 26(B)(3) to defeat the opinion work product privilege attached to the
Litigation Analysis.”
{¶13} Under Civ.R. 26(B)(1), the scope of pretrial discovery is broad and parties
may obtain discovery regarding any matter that is not privileged and is relevant to the
subject matter. When a discovery issue involves an alleged privilege, it is a question of
law that must be reviewed de novo. Ward v. Summa Health Sys., 128 Ohio St.3d 212,
2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. The burden of showing that a document is
privileged rests with the party seeking to exclude it. Li v. Olympic Steel, Inc., 8th Dist.
Cuyahoga No. 97286, 2012-Ohio-603, ¶ 9. “The determination whether a
communication should be afforded the cloak of the privilege depends on the
circumstances of each case, and the privilege must yield when justice so requires.” Id. at
¶ 10, citing Lemley v. Kaiser, 6 Ohio St.3d 258, 264, 452 N.E.2d 1304 (1983).
{¶14} “In Ohio, the attorney-client privilege is governed both by statute, R.C.
2317.02(A), which provides a testimonial privilege, and by common law, which broadly
protects against any dissemination of information obtained in the confidential
attorney-client relationship.” State ex rel. Dawson v. Bloom-Carroll Local School Dist.,
131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 27, citing State ex rel. Toledo
Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905
N.E.2d 1221, ¶ 24. The privilege is intended to encourage full and frank communication
between attorneys and their clients and is founded on the premise that confidences shared
in the attorney-client relationship are to remain confidential. State ex rel. Toledo Blade
Co. at ¶ 21. “[A]n attorney’s factual investigation, if incident to or related to any legal
advice that the attorney would give on a particular issue, is covered by the privilege.”
State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶
29, citing State ex rel. Toledo Blade Co. at ¶ 28-31.
{¶15} Although the Litigation Analysis arguably is subject to the attorney-client
privilege, we conclude that the trial court properly ordered the disclosure of paragraphs
18(a) and (b). Because the attorney-client privilege is an exception to the general rules
of disclosure, where it obstructs the search for relevant information, the privilege should
be strictly construed. Air-Ride, Inc. v. DHL Express (USA), Inc., 12th Dist. Clinton No.
CA2008-01-001, 2008-Ohio-5669, ¶ 12, citing Farm Credit Bank of St. Paul v. Huether,
454 N.W.2d 710, 721 (N.D.1990).
{¶16} In this case the Litigation Analysis was inadvertently disclosed. Several
Ohio courts have adopted a case-by-case approach to determine whether the
circumstances of the inadvertent disclosure warrant a finding that the privilege has been
waived. See Air-Ride, Inc. at ¶ 16; Guider v. Am. Heritage Homes Corp., 3d Dist. Logan
No. 8-07-16, 2008-Ohio-2402, ¶ 9; Miles-McClellan Constr. Co. v. Westerville Bd. of
Edn., 10th Dist. Franklin Nos. 05AP-1112, 05AP-1113, 05AP-1114, and 05AP-1115,
2006-Ohio-3439, ¶ 14-16. Under this approach, the court generally considers the
following five factors to determine whether the inadvertent disclosure should constitute a
waiver of the privilege:
(1) the reasonableness of the precautions taken to prevent inadvertent
disclosure; (2) the time taken to rectify the error; (3) the scope of the
discovery; (4) the extent of the disclosure; and (5) the “overriding issue of
fairness.”
Air Ride, Inc. at ¶ 17; Guider at ¶ 9. Although no one factor is dispositive,
“overreaching considerations of fairness” may weigh heavily in favor of finding a waiver
of privilege after an inadvertent disclosure. See Air Ride, Inc. at ¶ 17. We adopt this
approach herein.1
{¶17} The inadvertent disclosure of a privileged document itself is indicative of a
failure to take reasonable precautions to protect the privilege. Air Ride, Inc. at ¶ 18. In
this case, it is unclear what, if any, precautions were in place to prevent dissemination of
the Litigation Analysis. The document, which was prepared in January 2012, was
discovered by plaintiffs’ counsel in July 2013. After the inadvertent disclosure was
discovered, CompuDyne promptly asked for its return. Upon being informed of
opposing counsel’s intent to dispute the privileged nature of the document, CompuDyne
1
Although Fed.R.Evid. 502(b) sets forth three requirements for an inadvertent disclosure to
operate as a waiver, federal courts generally consider five similar factors to determine whether an
inadvertent disclosure constitutes a waiver. See Inhalation Plastics, Inc. v. Medex
Cardio-Pulmonary, Inc., S.D.Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830 (Aug. 28, 2012).
The Advisory Committee Notes to Fed.R.Evid. 502(b) state that “[t]he rule is flexible enough to
accommodate any of those * * * factors.”
filed a motion for a protective order and the trial court held an in camera review and
conducted a hearing. Although the record does not show the circumstances under which
the document was disclosed or the scope of discovery involved with its production, the
extent of the disclosure was complete as plaintiffs’ counsel had a full opportunity to
review the document, analyze its content, and assess its import on the case. The trial
court considered that the information contained in paragraphs 18(a) and (b) dealt directly
with issues germane to this case, that the information was not provided in the responses to
discovery, and that disclosure of the information was warranted.
{¶18} “Where inadvertently disclosed documents are found to be relevant to the
receiving party, fairness dictates waiver should be found.” Air Ride, Inc. at ¶ 28, citing
Draus v. Healthtrust, Inc., 172 F.R.D. 384, 388 (S.D.Ind.1997). Further, in this case, the
trial court initially gave CompuDyne the opportunity to amend its interrogatories or to
propose a stipulation to comport with the information contained in paragraphs 18(a) and
(b) of the Litigation Analysis. Because an agreed stipulation was not reached, the
overriding issue of fairness required disclosure under the circumstances of this case.
{¶19} We next consider the work-product doctrine. In Ohio, the work-product
doctrine is set forth in Civ.R. 26(B)(3), which provides 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 * *
* only upon a showing of good cause therefor.
The Ohio Supreme Court has stated that “a showing of good cause under Civ.R. 26(B)(3)
requires demonstration of need for the materials — i.e., a showing that the materials, or
the information they contain, are relevant and otherwise unavailable.” Jackson v.
Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16. The party seeking
discovery has the burden to demonstrate good cause for the sought-after materials. Id.The determination of whether materials are protected by the attorney work-product
doctrine and the determination of good cause are discretionary determinations to be made
by the trial court. State ex rel. Greater Cleveland Regional Transit Auth. v. Guzzo, 6
Ohio St.3d 270, 271, 452 N.E.2d 1314 (1983). Our review of these determinations is for
an abuse of discretion. Sherwin-Williams Co. v. Motley Rice L.L.C., 8th Dist. Cuyahoga
No. 96927, 2012-Ohio-809, ¶ 34.
{¶20} In this matter, the Litigation Analysis was prepared by Scott Henry, national
coordinating counsel for CompuDyne. He prepared the document for CompuDyne’s
outside corporate counsel and its insurers at their request. It was intended to serve as a
comprehensive assessment of all pending claims against CompuDyne. Henry testified
that the document contained his analysis and opinions of the national litigation that his
client was facing in multiple cases in multiple states.
{¶21} Henry testified that paragraphs 18(a) and (b) of the Litigation Analysis were
prepared by prior national coordinating counsel, who was deceased. Henry had no
reason to believe the information was incorrect. These paragraphs provide factual
information regarding the corporate history of CompuDyne in regard to its relationship
with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA), and also detail the asbestos
content of York-Shipley boilers. The paragraphs contain factual information that was
not provided in the responses to discovery.
{¶22} Although CompuDyne maintains that it provided accurate responses to the
interrogatories, it avoided providing responses and information as to York-Shipley and
the asbestos-containing products used in York-Shipley boilers. Further, although
CompuDyne claims that it has never asserted that it was not responsible for the pre-1969
York-Shipley boilers at issue in this case and has provided corporate documents
concerning its relationship with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA),
the information provided does not contain the factual details contained in the Litigation
Analysis, which implicates York-Shipley in manufacturing and selling boilers that
contained asbestos-containing parts. As the trial court recognized, CompuDyne’s
response to interrogatory No. 5, which indicated it had never engaged in the mining,
manufacturing, selling, marketing, installation, or distribution of asbestos-containing
products, and its response to the request for production that it had no predecessors
“doesn’t square with the corporate history” outlined in the Litigation Analysis. Further,
while CompuDyne produced its corporate representative Rock for a deposition and
provided his affidavit, he did not possess the information set forth in the Litigation
Analysis. The sought-after information was nowhere else provided, and there is no
living person who possesses knowledge of the corporate history as described in the
Litigation Analysis.
{¶23} Appellees met their burden of demonstrating “good cause” to order the
production of this information and showed there was a need for this information, which
was relevant to appellees’ claims and was otherwise unavailable. The court did not
abuse its discretion in finding paragraphs 18(a) and (b) were not protected by the
work-product doctrine with regard to the factual information contained therein.
{¶24} However, we note that a very limited portion of paragraph 18(b) does
contain Henry’s legal impressions and should be subject to redaction. Therefore, we
modify the trial court’s decision and instruct that paragraphs 18(a) and (b) are subject to
disclosure with the redaction of the following lines under paragraph 18(b): the last
sentence of the 1969 section, the last sentence of the 1984 section, the last sentence of the
2001 section, as well as the statement that begins with two asterisks that follows.
{¶25} Judgment affirmed as modified.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR