Li v. Olympic Steel, Inc. , 2012 Ohio 603 ( 2012 )

[Cite as Li v. Olympic Steel, Inc., 2012-Ohio-603.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97286
SHIRLEY LI
PLAINTIFF-APPELLEE
vs.
OLYMPIC STEEL, INC.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-740817
BEFORE: Cooney, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 16, 2012
2
ATTORNEYS FOR APPELLANT
Steven M. Moss
Patrick O. Peters
Robert A. Zimmerman
Benesch, Friedlander, Coplan & Aronoff
200 Public Square
Suite 2300
Cleveland, Ohio 44114-2378
ATTORNEYS FOR APPELLEE
Peter Hardin-Levine
J. Matthew Linehan
Christopher P. Thorman
Thorman & Hardin-Levine Co., LPA
1220 West Sixth Street, Suite 207
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, P.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Olympic Steel, Inc. (“Olympic”),
appeals the trial court’s denial of its motion for a protective order. Finding no merit to
the appeal, we affirm.
{¶2} In November 2010, plaintiff-appellee, Shirley Li (“Li”), filed suit against
her former employer, Olympic, alleging discrimination and retaliation in connection with
3
her termination. Discovery proceeded during which Li sought to depose Olympic’s
corporate representative in connection with the documents she requested, suggesting that
some of the documents had been altered or destroyed. Olympic filed a motion for a
protective order, arguing that any deposition of its representative in relation to these
documents was improper because it would violate attorney-client privilege and the
attorney work-product doctrine.
{¶3} After a teleconference, the trial court denied Olympic’s motion without
opinion. The deposition was scheduled and a representative from Olympic appeared.
At the start of the deposition, counsel for Olympic renewed its objection but the
deposition continued. However, during the deposition, counsel for Olympic refused to
continue due to alleged inaccuracies in the representative’s testimony.
{¶4} Olympic now appeals the trial court’s denial of its motion for a protective
order.
{¶5} In its sole assignment of error, Olympic argues that the trial court erred in
denying its motion for a protective order, arguing that Li’s request violates attorney-client
privilege and the attorney work-product doctrine.
{¶6} It is well settled that the trial court enjoys considerable discretion in the
regulation of discovery. Manofsky v. Goodyear Tire & Rubber Co., 69 Ohio App.3d
663, 668, 591 N.E.2d 752 (9th Dist.1990). We review the trial court’s decision to deny
a motion for a protective order for an abuse of discretion. Mauzy v. Kelly Servs., Inc., 75
4
Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996). Despite Olympic’s contention that a de
novo review applies, this court has previously found that “[p]retrial discovery orders
pertaining to the issue of privilege are likewise reviewed for an abuse of discretion.”
Smalley v. Friedman, Domiano & Smith, Co. LPA, 8th Dist. No. 83636, 2004-Ohio-2351,
citing Abbuhl v. Orange Village, 8th Dist. No. 82203, 2003-Ohio-4662, citing Radovanic
v. Cossler, 140 Ohio App.3d 208, 213, 746 N.E.2d 1184 (8th Dist.2000); see also
Lightbody v. Rust, 137 Ohio App.3d 658, 739 N.E.2d 840 (8th Dist.2000).
{¶7} The term “abuse of discretion” connotes more than an error of judgment; it
implies that the trial court’s ruling was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of
discretion demonstrates “perversity of will, passion, prejudice, partiality, or moral
delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748(1993). When applying the abuse of discretion standard, this court may not substitute its
judgment for that of the trial court. Id.{¶8} Civ.R. 26(C) governs protective orders and provides, in pertinent part, that:
Upon motion by any party or by the person from whom discovery is sought,
and for good cause shown, the court in which the action is pending may
make any order that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following: * * * that a trade secret or other
confidential research, development, or commercial information not be
disclosed or be disclosed only in a designated way. Civ.R. 26(C)(7).
5
{¶9} The burden of showing that testimony or documents are confidential or
privileged rests with the party seeking to exclude it. Covington v. The MetroHealth Sys.,
150 Ohio App.3d 558, 2002-Ohio-6629, 782 N.E.2d 624, ¶ 24 (10th Dist.), citing Lemley
v. Kaiser, 6 Ohio St.3d 258, 263-264, 452 N.E.2d 1304 (1983).
{¶10} The attorney-client privilege exempts from discovery certain
communications between attorneys and their clients in the course of seeking or rendering
legal advice. Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (2001).
The privilege is founded on the premise that confidences shared in the attorney-client
relationship are to remain confidential. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d
638, 660, 635 N.E.2d 331 (1994). The privilege is not absolute, and there is no
presumption of confidentiality of all communications made between an attorney and
client. Id. at 660-661. 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. Lemley, 6 Ohio St.3d 258, 264, 452 N.E.2d 1304(1983). As the Ohio Supreme Court stated in Boone:
Work product consists of “documents 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” and may be discovered only upon a showing of
good cause. Civ.R. 26(B)(3). * * * The purpose of the work-product
doctrine is “to prevent an attorney from taking undue advantage of his
adversary’s industry or efforts.” Boone at fn. 2, quoting Civ.R. 26; see
also Sutton v. Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841,
951 N.E.2d 91, ¶ 25 (8th Dist.).
6
{¶11} Work product that reveals the mental impressions and legal theories of a
lawyer are afforded protection except in rare situations in which the attorney has engaged
in illegal conduct. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66
L.Ed.2d 584 (1981); Baker v. Gen. Motors Corp., 209 F.3d 1051 (8th Cir.2000); State v.
Hoop, 134 Ohio App.3d 627, 731 N.E.2d 1177 (12th Dist.1987). However, “ordinary
fact” or “unprivileged fact” work product, such as witness statements and underlying
facts, receives lesser protection. Antitrust Grand Jury, 805 F.2d 155, 163 (6th
Cir.1986).
{¶12} Olympic argues that its representative would divulge attorney-client
communications if he were to be deposed regarding the documents Li seeks to
investigate. Olympic argues that the corporate representative compiled the documents at
the instruction of counsel. Li argues that the documents at issue are not ones created by
Olympic’s counsel, but rather created by Olympic employees in the course of regular
business, and that they have already been given to her in the course of discovery. Li
points out that Olympic did not object to the actual documents being produced in the
course of discovery. Li also contends that by deposing the corporate representative, she
would not be questioning him regarding the subject matter of the documents, but about
the way in which the documents were collected and produced, and thus the work-product
doctrine would not apply.
7
{¶13} After a thorough review of the record, Olympic has failed to rebut Li’s
arguments and has failed to set forth any evidence to show that testimony from the
corporate representative regarding the way in which the documents were produced would
violate Olympic’s privilege with its counsel.
{¶14} Assuming arguendo that Olympic has met its burden of showing that the
testimony would be privileged, the trial court still had the discretion to allow the
deposition because “[w]ritten or oral information transmitted to the lawyer and recorded
as conveyed may be compelled upon a showing of ‘good cause’ by the subpoenaing
party.” Jerome v. A-Best Prods. Co., 8th Dist. Nos. 79139–79142, 2002-Ohio-1824,
citing Hickman v. Taylor, 329 U.S. 495, 510-512, 67 S.Ct. 385, 91 L.Ed. 451 (1946).
“Good cause,” defined by Civ.R. 26(B)(3), requires a showing of substantial need, that
the information is important in the preparation of the party’s case, and that there is an
inability or difficulty in obtaining the information without undue hardship. See Hoop,
134 Ohio App.3d at 642, 731 N.E.2d 1177; see also Upjohn Co., 449 U.S. 383, 101 S.Ct.
677, 66 L.Ed.2d 584.
{¶15} The record indicates that Li set forth good cause by alleging that Olympic
and its counsel had altered hand-written notes made by Olympic employees. Li
produced what she claims to be three different versions of the same document, created by
Olympic and given to her during discovery. Li claims that the different versions prove
8
her allegation that key documents were altered by Olympic prior to delivery. This court,
in Jerome, found that
[t]he deposition-discovery rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of “fishing expedition”
serve to preclude a party from inquiring into the facts underlying his
opponent’s case. * * * Mutual knowledge of all the relevant facts gathered
by both parties is essential to proper litigation. To that end, either party
may compel the other to disgorge whatever facts he has in his possession.
Jerome at ¶ 21, quoting Hickman, 329 U.S. at 507, 67 S.Ct. 385.
{¶16} Not only has Olympic failed to meet their burden of demonstrating that a
privilege existed, but Li has shown good cause. Therefore, we find no abuse of
discretion in the trial court’s denial of Olympic’s motion for a protective order.
{¶17} Accordingly, the sole assignment of error is overruled.1
{¶18} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
Olympic raised a new claim at oral argument that the trial court should have held a hearing
1
on its motion. This issue was waived, however, because Olympic never requested a hearing.
9
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
___________________________________________________
COLLEEN CONWAY COONEY, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR