Parks v. Colburn , 2018 Ohio 4595 ( 2018 )

[Cite as Parks v. Colburn, 2018-Ohio-4595.]
MICHAEL R. PARKS Case No. 2018-00879PQ
Requester Special Master Jeffery W. Clark
v. DECISION
TIM COLBURN,
THE BERGER HOSPITAL
Respondent
{¶1} Before the court are (1) written objections filed on September 17, 2018, by
requester Michael R. Parks to a report and recommendation issued on
September 11, 2018, by a special master of this court, and (2) written objections filed on
September 28, 2018, by respondent, Tim Colburn, The Berger Hospital (Berger
Hospital), to the special master’s report and recommendation of September 11, 2018.
The matter, which is fully briefed, is before the court for decision.
I. Background
{¶2} On May 21, 2018, Parks filed a complaint against Berger Hospital, alleging a
denial of access to public records. The court appointed attorney Jeffery W. Clark as a
special master in the cause. Special Master Clark referred the case to mediation. After
mediation failed to successfully resolve all disputed issues between the parties, the
court returned the case to the docket of Special Master Clark.
{¶3} On July 9, 2018, Berger Hospital, through counsel, moved to dismiss Parks’
complaint, contending that Parks’ request should be denied because, among other
things, Parks sought attorney-client communications or attorney work product. On
August 3, 2018, Special Master Clark ordered Berger Hospital to file certain documents
under seal. And on September 11, 2018, Special Master Clark issued a report and
recommendation wherein he recommended denying Berger Hospital’s motion to dismiss
and determining the matter on the merits. In the report and recommendation
Case No. 2018-00879PQ -2- DECISION
Special Master Clark made specific findings related to Berger Hospital’s claimed
privileges. And in the conclusion of the report and recommendation Special Master
Clark “recommend[ed] that the court grant Parks’ claim for partial production of the
withheld records from Request No. 2 as detailed [on pages 9-11 of the report and
recommendation] and deny all other claims.” (Report and Recommendation, 11.)
Special Master Clark further “recommend[ed] that costs be assessed equally between
the parties.” (Report and Recommendation, 11.)
{¶4} Four business days after Special Master Clark issued his report and
recommendation—on September 17, 2018—Parks filed a document labeled
“Requester’s Objection.” A review of Parks’ filing discloses that Parks’ filing is not
accompanied by a completed proof of service that states the date and manner of
service, that specifically identifies how service was effected, and that was signed in
accordance with Civ.R. 11.
{¶5} On September 28, 2018—which, according to the court’s records, was
seven business days after Berger Hospital received a copy of Special Master Clark’s
report and recommendation of September 11, 2018—Berger Hospital filed written
objections to Special Master Clark’s report and recommendation. According to a
certificate of service accompanying Berger Hospital’s written objections, Berger
Hospital’s counsel—attorney Maria J. Armstrong—certified that a true copy of
respondent’s written objections “was sent via regular U.S. mail, postage prepaid” to
Parks on September 28, 2018.
{¶6} On October 9, 2018—which, according to the court’s records, was six
business days after Berger Hospital received a copy of Parks’ written objections—
Berger, through counsel, filed a response to Parks’ objections. According to a
certificate of service accompanying Berger Hospital’s written objections, attorney
Maria J. Armstrong certified that a true copy of respondent’s written objections “was
sent via regular U.S. mail, postage prepaid” to Parks on October 9, 2018.
Case No. 2018-00879PQ -3- DECISION
Law and Analysis
{¶7} R.C. 2743.75(F)(2) governs objections to a report and recommendation
issued by a special master of this court relative to a public-records dispute. Pursuant to
R.C. 2743.75(F)(2):
Either party may object to the report and recommendation within seven
business days after receiving the report and recommendation by filing a
written objection with the clerk and sending a copy to the other party by
certified mail, return receipt requested. Any objection to the report and
recommendation shall be specific and state with particularity all grounds
for the objection. If neither party timely objects, the court of claims shall
promptly issue a final order adopting the report and recommendation,
unless it determines that there is an error of law or other defect evident on
the face of the report and recommendation. If either party timely objects,
the other party may file with the clerk a response within seven business
days after receiving the objection and send a copy of the response to the
objecting party by certified mail, return receipt requested. The court, within
seven business days after the response to the objection is filed, shall
issue a final order that adopts, modifies, or rejects the report and
recommendation.
A. Neither Parks nor Berger Hospital has complied with
R.C. 2743.75(F)(2)’s requirements for service of written objections and
responses.
{¶8} Based on the court’s review of the parties’ written objections, neither party
has complied with R.C. 2743.75(F)(2)’s requirements for service of written objections to
a special master’s report and recommendation. Specifically, a review of Parks’ filing
discloses that Parks’ filing is not accompanied by any completed proof of service. Thus,
Parks has failed to comply with R.C. 2743.75(F)(2)’s provision that requires a party who
objects to a special master’s report and recommendation to send a copy of the written
objection to the other party by certified mail, return receipt requested. And, absent any
completed proof of service accompanying Parks’ motion or a separately filed proof of
service, it is arguable whether the court should consider Parks’ written objections. See
Civ.R. 5(B)(4) (requiring a served document to be accompanied by a completed proof of
service and stating that documents filed with the court “shall not be considered until
Case No. 2018-00879PQ -4- DECISION
proof of service is endorsed thereon or separately filed”); see also R.C. 2743.03(D)
(providing that the Ohio Rules of Civil Procedure “shall govern practice and procedure in
all actions in the court of claims, except insofar as inconsistent with
[R.C. Chapter 2743]”).
{¶9} Berger Hospital also has failed to comply with R.C. 2743.75(F)(2)’s provision
that requires a party who objects to a special master’s report and recommendation—
and who files a response to another party’s objection—to send a copy of the written
objection and response to the other party by certified mail, return receipt requested. In
this instance, in a certificate of service accompanying Berger Hospital’s written
objections, Berger Hospital’s counsel certified that she sent a copy of Berger Hospital’s
written objections “via regular U.S. mail, postage prepaid” to Parks on
September 28, 2018, and in a certificate of service accompanying Berger Hospital’s
response to Parks’ objections, Berger Hospital’s counsel certified that she sent a copy
of Berger Hospital’s response to Parks “via regular U.S. mail, postage prepaid” on
October 9, 2018
{¶10} The court determines that Parks and Berger Hospital have failed to comply
with R.C. 2743.75(F)(2)’s requirements for service of written objections. And the court
further determines that Berger Hospital has failed to comply with R.C. 2743.75(F)(2)’s
requirements for service of a response to another party’s objections.
B. Parks’ objections are not well-taken.
{¶11} Assuming for the sake of argument that Civ.R. 5(B)(4) and
R.C. 2743.75(F)(2) should be construed to permit this court to consider Parks’ written
objections, the court finds that Parks’ objections are not well-taken. In a summary in his
written objections Parks states:
Parks asks the Court to reexamine Respondent’s use of ‘Berger’.
Respondent uses ‘Berger’ to create an illusion that all “Berger” (s) are part
of the real The Berger Hospital.
Case No. 2018-00879PQ -5- DECISION
Parks asserts that the Respondent and his legal counsel have been
serving their own interests and that they have at no time been employed
by the Owners of The Berger Hospital to represent them or the interests of
the citizens of Pickaway County in this matter.
Parks asserts that the Respondent has been less than forthcoming with
his responses.
Parks requests that The Berger Hospital be ordered to answer Parks’
complaint.
The main public record sought by Parks has been the written authorization
by The Berger Hospital to Bricker & Eckler LLP hiring their services in the
Facebook matter.
Based on the court’s independent review, Parks’ summary does not call the court’s
attention to any purported error relative to the special master’s findings of fact or
conclusions of law. Moreover, Parks’ request for the court to order respondent to file an
answer to Parks’ complaint is not well-grounded because R.C. 2743.75(E)(2) permits a
public office or person responsible for public records to file a motion to dismiss instead
of filing response. See R.C. 2743.75(E)(2) (providing that, within ten business days
after the termination of mediation or notification to the court that a case was not referred
to mediation under R.C. 2743.75(E)(1), the public office or person responsible for public
records “shall file a response, and if applicable, a motion to dismiss the complaint, with
the clerk of the court of claims and transmit copies of the pleadings to the allegedly
aggrieved party”). Here, Berger Hospital filed a motion to dismiss in accordance with
R.C. 2743.75(E)(2).
{¶12} Therefore, even assuming that the Parks’ objections are properly before
the court, the court finds that Parks’ objections are not well-taken. The court determines
that Parks’ objections should be overruled.
C. Berger Hospital’s objections are well-taken.
{¶13} Although Berger Hospital’s written objections are procedurally deficient
under R.C. 2743.75(F)(2), the court finds that Berger Hospital’s objections have merit.
Case No. 2018-00879PQ -6- DECISION
In the introduction of Berger Hospital’s written objections, Berger Hospital sets forth its
objections, stating:
* * * The Special Master’s Report and Recommendation is largely correct.
It correctly finds Request No. 1 to be an “improper and unenforceable
request for a document that does not exist,” or, alternatively, an
“ambiguous, overly broad, and unenforceable request.” It also correctly
finds that Request No. 2 was similarly an “improperly ambiguous, overly
broad and unenforceable,” which should have been the end of the inquiry.
The Report and Recommendation goes further, however, and correctly
finds that the content of the emails in question is protected by the
attorney-client privilege or work product. The Report and
Recommendation, however, is then internally inconsistent by nonetheless
recommending enforcement of the unenforceable request by ordering
Berger to produce the emails in question, redacted to the point where they
no longer constitute a public record and no longer contain information
responsive to the request. This recommendation is also inconsistent with
the plain text of the Public Records Act and Ohio Supreme Court
precedent which establishes that Berger may properly withhold these
emails in their entirety.
* * * Berger submits to this Court that it should concur with the Special
Master's Report and Recommendation entirely as it pertains to Request
No. 1 and only insofar as the Report and Recommendation finds that
Request No. 2 was “improperly ambiguous, overly broad and
unenforceable.”
Alternatively, should the Court decide to address the issues of attorney-
client privilege and work product, Berger respectfully submits that the
Court should concur with the Report and Recommendation only insofar as
it determines that the content of the emails at issue is protected under the
attorney-client privilege or work product. Berger asks this Court to reject
that portion of the Report and Recommendation which requires heavy
redaction of privileged material and find that Berger has properly withheld
those emails, consistent with the plain text of the Public Records Act and
Ohio Supreme Court precedent. Berger respectfully submits that the Court
should reject the Special Master’s recommendation that Berger produce
some header information and signature blocks of the emails in question.
Case No. 2018-00879PQ -7- DECISION
{¶14} In the report and recommendation, Special Master Clark identified Parks’
Request No. 2 as follows:
Please list all entities in which ‘Berger’ has an interest.
Also consider this my last request for any records possessed by ‘Berger’
or any other entity that they may be privy to regarding the following
records:
Records that discuss me in regard to my Facebook page being removed
by your law firm.
***
(“Request No.2”) (Complaint, Exhibit A.)
(Report and Recommendation, 1.) And Special Master Clark stated: “I find that the
wording of Request No. 2 constitutes an improperly ambiguous, overly broad, and
unenforceable request.” (Report and Recommendation, 5.) Special Master Clark also
stated:
In the context of Parks’ previous requests regarding corporate entities to
which Berger belonged, Berger provided records, invitations to discuss
and revise, and explanatory information, stopping short only of Parks’
request that Berger rewrite his request for him. (Response at 5-7). I
conclude that Berger has made good faith efforts to assist Parks with this
request that satisfied R.C. 149.43(B)(2). I further find that, to the extent
that Berger has answered the implied or embedded request for a list of
entities in which Berger “has a legal interest,” Berger has rendered this
request moot.
(Report and Recommendation, 5.)
{¶15} Upon independent review, the court determines that Special Master Clark
correctly found that Request No. 2 constitutes an improperly ambiguous, overly broad,
and unenforceable request and that Special Master Clark correctly concluded that
Berger Hospital made good faith efforts to assist Parks with his request that satisfied
R.C. 149.43(B)(2). Because in this instance Request No. 2 constitutes an improperly
ambiguous, overly broad, and unenforceable request, and because Berger Hospital
made good faith efforts to assist Parks in satisfaction of R.C. 149.43(B)(2)
Case No. 2018-00879PQ -8- DECISION
Berger Hospital arguably complied with its duty under Ohio public-records law. See,
e.g., Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914,
¶ 26-27, aff’d 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296 (noting that
R.C. 149.43(B)(2) and Ohio case law require that a public records request be limited to
those requests that are not ambiguous, overly broad, or all-encompassing and that
R.C. 149.43(B)(2) mandates that the office or person responsible for public records, if
faced with an overly broad request, is required to provide a requester with an
opportunity to revise the request).
{¶16} In the report and recommendation Special Master Clark stated: “On review
of the withheld documents in camera, I find that all are email communications between
Berger Hospital CEO Tim Colburn, and legal counsel to Berger or counsel with common
legal interest.” (Report and Recommendation 9.) However, notwithstanding this
finding, Special Master Clark then (1) determined that certain parts of the withheld
documents were not covered by attorney-client privilege or the work-product doctrine,
(2) proposed redactions based on his determinations relative to attorney-client privilege
and the work-product doctrine, and (3) recommended partial production of the withheld
records as set forth in the report and recommendation. (Report and
Recommendation, 9-11.)
{¶17} Upon independent review, the court determines that Special Master Clark’s
recommendation for partial production of the withheld documents should not be
adopted. In Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio
St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, the Ohio Supreme Court discussed the
concept of attorney-client privilege, explaining:
“The attorney-client privilege is one of the oldest recognized privileges for
confidential communications.” Swidler & Berlin v. United States (1998),
524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379. As we explained in
State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005
Ohio 1508, 824 N.E.2d 990, “‘Its purpose is to encourage full and frank
communication between attorneys and their clients and thereby promote
Case No. 2018-00879PQ -9- DECISION
broader public interests in the observance of law and administration of
justice. The privilege recognizes that sound legal advice or advocacy
serves the public ends and that such advice or advocacy depends upon
the lawyer’s being fully informed by the client.’ Upjohn Co. v. United States
(1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584; Cargotec, Inc.
v. Westchester Fire Ins. Co., 155 Ohio App.3d 653, 2003 Ohio 7257, 802
N.E.2d 732, ¶ 7. ‘[B]y protecting client communications designed to obtain
legal advice or assistance, the client will be more candid and will disclose
all relevant information to his attorney, even potentially damaging and
embarrassing facts.’ (Footnote omitted.) 1 Rice, Attorney-Client Privilege
in the United States (2d Ed.1999) 14-15, Section 2.3.” Leslie, at ¶ 20.
Squire, Sanders & Dempsey, L.L.P. at ¶ 16. And in 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,
¶ 27, the Ohio Supreme Court stated, “The attorney-client privilege ‘does not require the
communication to contain purely legal analysis or advice to be privileged. Instead, if a
communication between a lawyer and client would facilitate the rendition of legal
services or advice, the communication is privileged.’ [Dunn v. State Farm Fire & Cas.
Co., 927 F.2d 869, 875 (5th Cir.1991].” Additionally, in State ex rel. Leslie v. Ohio Hous.
Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21, the Ohio
Supreme Court stated: “Under the attorney-client privilege, ‘(1) [w]here legal advice of
any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence (5) by the client,
(6) are at his instance permanently protected (7) from disclosure by himself or by the
legal adviser, (8) unless the protection is waived.’ Reed v. Baxter (C.A.6, 1998), 134
F.3d 351, 355-356; Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28,
2003 Ohio 3358, 790 N.E.2d 817, ¶ 12. Except under circumstances not relevant here,
only the client can waive the privilege. * * * .” Here, given that Berger Hospital withheld
the documents at issue and produced them pursuant to an order issued by a special
master, it does not appear to the court that waiver applies in this instance.
{¶18} In Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127
Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, besides discussing the attorney-
Case No. 2018-00879PQ -10- DECISION
client privilege, the Ohio Supreme Court also discussed the work-product doctrine,
explaining at ¶ 54-55:
The work-product doctrine emanates from Hickman v. Taylor (1947), 329
U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the Supreme Court of
the United States recognized that “[p]roper preparation of a client’s case
demands that [the attorney] assemble information, sift what he considers
to be the relevant from the irrelevant facts, prepare his legal theories and
plan his strategy without undue and needless interference. * * * This work
is reflected, of course, in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible ways – aptly though roughly
termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as
the ‘Work product of the lawyer.’ Were such materials open to opposing
counsel on mere demand, much of what is now put down in writing would
remain unwritten. An attorney’s thoughts, heretofore inviolate, would not
be his own. Inefficiency, unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the preparation of cases for
trial. The effect on the legal profession would be demoralizing. And the
interests of the clients and the cause of justice would be poorly served.”
Addressing these concerns, the work-product doctrine provides a qualified
privilege protecting the attorney’s mental processes in preparation of
litigation, establishing “a zone of privacy in which lawyers can analyze and
prepare their client’s case free from scrutiny or interference by an
adversary.” Hobley v. Burge (C.A.7, 2006), 433 F.3d 946, 949. However,
as the Supreme Court of the United States has explained, “the doctrine is
an intensely practical one, grounded in the realities of litigation in our
adversary system,” and the privilege afforded by the work-product doctrine
is not absolute. United States v. Nobles (1975), 422 U.S. 225, 238, 95 S.
Ct. 2160, 45 L. Ed.2d 141and 239, 95 S. Ct. 2160, 45 L. Ed.2d 141.
{¶19} Based on the court’s independent review of the withheld documents, the
court determines that the withheld documents are protected by attorney-client privilege
or the work-product doctrine. The court further determines that Special Master Clark’s
recommendations relative to the withheld documents should not be adopted.
II. Conclusion
{¶20} For reasons set forth above, the court holds that Parks’ written objections
to Special Master Jeffery W. Clark’s report and recommendation of September 11, 2018
Case No. 2018-00879PQ -11- DECISION
should be overruled and that Berger Hospital’s written objections to
Special Master Jeffery W. Clark’s report and recommendation of September 11, 2018
should be sustained. The court further holds that Special Master Clark’s report and
recommendation of September 11, 2018 should be adopted in part, rejected in part, and
modified in part. The court also holds that Special Master Clark’s report and
recommendation of September 11, 2018, as modified, should be adopted.
PATRICK M. MCGRATH
Judge
[Cite as Parks v. Colburn, 2018-Ohio-4595.]
MICHAEL R. PARKS Case No. 2018-00879PQ
Requester Special Master Jeffery W. Clark
v. JUDGMENT ENTRY
TIM COLBURN,
THE BERGER HOSPITAL
Respondent
{¶21} For the reasons set forth in the decision filed concurrently herewith, and
upon independent review of the objected matters, the court OVERRULES requester’s
written objections to Special Master Jeffery W. Clark’s report and recommendation of
September 11, 2018, and the court SUSTAINS respondent’s written objections to
Special Master Clark’s report and recommendation of September 11, 2018.
{¶22} The court adopts in part, rejects in part, and modifies in part Special Master
Clark’s report and recommendation of September 11, 2018. The court adopts, as
modified, Special Master Clark’s report and recommendation of September 11, 2018.
Judgment is rendered in favor of respondent. Court costs are assessed against
requester. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed October 16, 2018
Sent to S.C. Reporter 11/14/18