Nunez Vega v. Tivurcio , 2014 Ohio 4588 ( 2014 )

[Cite as Nunez Vega v. Tivurcio, 2014-Ohio-4588.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Raquel Nunez Vega, :
Plaintiff-Appellant, :
No. 14AP-327
v. : (C.P.C. No. 13CVC-02-1477)
Eddie Tivurcio, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 16, 2014
Doucet & Associates Co., L.P.A., Troy J. Doucet, and
Daniel A. Yarmesch, for appellant.
Law Office of Gary S. Shroyer, and Gary S. Shroyer; Hollern
& Associates, and H. Tim Merkle, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Plaintiff-appellant, Raquel Nunez Vega, appeals from the judgment of the
Franklin County Court of Common Pleas granting the motion to compel filed by
defendant-appellee, Eddie Tivurcio, d.b.a. El Chaparro Body Shop. For the reasons that
follow, the judgment of the trial court is affirmed.
I. BACKGROUND
{¶ 2} On February 8, 2013, appellant filed a complaint against appellee alleging
that she took her 2000 Ford Expedition ("Expedition") to appellee for repair of damages
incurred in a June 2011 car accident. According to the complaint, for approximately
$1,000, appellant acquired from a junkyard "nearly all of the parts necessary to repair"
the Expedition and provided them to appellee. (Complaint, 1.) The complaint also alleges
No. 14AP-327 2
that, in addition to providing appellee with the parts, appellant paid appellee $1,580 for
the final repair.
{¶ 3} As alleged in the complaint, appellant paid appellee in full on August 16,
2011 and told appellee that, "due to personal issues," she would not be able to pick up the
Expedition "for some time." (Complaint, 2.) From "August 16, 2011 to July 2012,"
appellant alleges she contacted appellee eight times and was told each time that the
Expedition remained at the body shop and that she could leave it there "as long as
necessary." (Complaint, 3.) According to the complaint, appellant told appellee in August
2012 that she would retrieve the Expedition immediately, but appellee then told her the
Expedition was no longer there. Additionally, the complaint alleges that appellee refused
to return the Expedition to appellant and refused to return any of the money appellant
expended for its repair.
{¶ 4} Arising out of these facts, appellant's complaint asserts causes of action for
conversion, trespass to chattels, and breach of bailment for which she seeks the market
value of the Expedition as of August 2012, loss of use, and punitive damages. The
complaint also alleges violations of the Ohio Consumer Sales Practices Act and seeks the
cost of repairs, the cost of parts, the value of the Expedition, treble damages, attorney fees,
and costs.
{¶ 5} Discovery proceeded and appellee took appellant's deposition on
January 10, 2014. In response to a number of questions, appellant's counsel objected and
instructed appellant not to answer based on an assertion of the Fifth Amendment.
Though both counsel disagreed about the propriety of the objections, the deposition
continued. Appellant's refusal to answer certain questions at her deposition prompted
appellee to file a motion to compel pursuant to Civ.R. 37. In the motion to compel,
appellee alleged that during the deposition, appellant's counsel made "about 100"
objections and directed appellant not to answer 38 different times. (Motion to Compel,
4.) However, in the motion to compel, appellee specifically challenged only seven
exchanges. Alleging that appellant was attempting to avoid discovery through the
improper invocation of her Fifth Amendment privilege, appellee asked the court (1) to
order appellant to answer completely and fully the questions asked to her in an oral
deposition along with all other questions reasonably arising from her responses, and
No. 14AP-327 3
(2) to order appellant and her attorneys to pay appellee the reasonable costs and expenses
incurred in filing the motion to compel, including attorney fees.
{¶ 6} In her memorandum contra, appellant asserted (1) appellee failed to make
reasonable efforts to resolve the discovery dispute prior to filing the motion to compel,
(2) appellee failed to show that appellant is not entitled to assert a Fifth Amendment
privilege in response to appellee's questions, and (3) appellee's questions were not
relevant to these proceedings. Specifically, appellant stated appellee's motion to compel
should be denied because it is "an offensive, racially-charged attempt to gain advantage"
in the case by "prodding [appellant] about her immigration status," and it "seeks to
pressure [appellant] into dropping her case or facing discovery sanctions" for refusing to
answer "irrelevant questions about her national heritage" to which she has asserted her
constitutional right not to answer. (Memorandum Contra, 1.) According to appellant's
memorandum contra, the "vast majority of [appellee's] business comes from the Spanish-
speaking community * * * a community that [appellee] knows is unlikely to seek a remedy
against him in court." (Memorandum Contra, 2.) Citing to an article from the American
Civil Liberties Union Foundation Women's Rights Project titled No Free Pass to Harass:
Protecting the Rights of Undocumented Immigrant Workers in Sexual Harassment
Cases, appellant's memorandum contra states, generally, that "[w]hile deportation
proceedings are civil rather than criminal actions, a witness may assert the Fifth
Amendment privilege for fears of prosecution regarding the use of false identification
documents, failure to depart the U.S. within 90 days of an order of deportation, unlawful
entry or attempted entry into the country, unlawful re-entry after being deported or
denied admission, and false representation of self as a U.S. citizen." (Memorandum
Contra, 4-5.) Appellant's memorandum contra, however, fails to indicate that appellant
possessed any such fears.
{¶ 7} At the April 3, 2014 hearing on appellee's motion to compel, appellant
argued none of the questions posed in the seven exchanges to which appellee referred to
in the motion to compel sought evidence that was relevant to this litigation. Specifically,
appellant's counsel stated "[t]hese questions are clearly meant to just intimidate and
harass my client about her national heritage." (Apr. 3, 2014 Tr. 14-15.) Appellant's
counsel did not challenge any specific question but, rather, challenged the seven
No. 14AP-327 4
exchanges in a general manner, as he stated "an important issue here is does [appellant]
have an absolute right to assert her Fifth Amendment privilege." (Apr. 3, 2014 Tr. 19.) At
the conclusion of the hearing, the trial court found that the questions to which appellant
objected were standard in "almost any deposition." (Apr. 3, 2014 Tr. 39.) Additionally,
the trial court concluded that appellant's refusal to answer was based either on an
"undefined Fifth Amendment privilege" or "relevance, which isn't the test in a discovery
deposition at all." (Apr. 3, 2014 Tr. 39.) Thereafter, the trial court granted appellee's
motion to compel and imposed sanctions in an amount to be determined at a later time.
Accordingly, the trial court filed a judgment entry stating "the Court finds that the
plaintiff and her counsel improperly invoked a 5th Amendment privilege and that they
were not substantially justified in refusing to answer the questions." (Entry, 2.)
Therefore, the court ordered that appellant sit for another discovery deposition and
answer "all questions without improperly asserting a 5th Amendment privilege." (Entry,
2.) Further, the court ordered that appellant and her counsel pay appellee the expenses
associated with obtaining the entry in an amount to be determined at a subsequent
hearing.
II. ASSIGNMENTS OF ERROR
{¶ 8} This appeal followed, and appellant brings the following assignments of
error for our review:1
1. The Trial Court erred in granting Tivurcio's Motion to
Compel where Ms. Nunez Vega was entitled to assert her Fifth
Amendment privilege to Tivurcio's potentially incriminating
questions.
2. The Trial Court erred in awarding sanctions against Ms.
Nunez Vega and her counsel for the mere assertion of Ms.
Nunez Vega's Fifth Amendment privilege.
3. The Trial Court's April 15th Judgment Entry is
impermissibly vague.
1Appellee filed a motion to dismiss this appeal for lack of a final, appealable order. That motion was denied
by this court via entry filed April 29, 2014.
No. 14AP-327 5
4. The Trial Court erred in granting Tivurcio's Motion to
Compel where Tivurcio failed to present any admissible
evidence in support of his Motion to Compel.
5. The Trial Court erred in granting Tivurcio's Motion to
Compel where Tivurcio failed to make a reasonable attempt to
resolve the discovery dispute before filing his Motion to
Compel.
III. DISCUSSION
A. Standard of Review
{¶ 9} A trial court "possesses broad discretion over the discovery process," and,
therefore, appellate courts "generally review a trial court's decision regarding a discovery
matter only for an abuse of discretion." MA Equip. Leasing I, L.L.C. v. Tilton, 10th Dist.
No. 12AP-564, 2012-Ohio-4668, ¶ 13. Nevertheless, an abuse of discretion standard "is
inappropriate for reviewing a judgment based upon a question of law, including an
erroneous interpretation of the law." Id. In general, the issue as to "whether information
sought in discovery is confidential and privileged 'is a question of law that is reviewed de
novo.' " Id., quoting Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-
2496, ¶ 13. This court has also recognized, however, "with respect to a privilege claim, the
appropriate standard of review depends on whether the privilege claim presents a
question of law or a question of fact." Randall v. Cantwell Mach. Co., 10th Dist. No.
12AP-786, 2013-Ohio-2744, ¶ 9. Accordingly, "[w]hen it is necessary to interpret and
apply statutory language to determine whether certain information is confidential and
privileged, a de novo standard applies." Id. By contrast, "[w]hen a claim of privilege
requires review of factual questions, such as whether an attorney-client relationship
existed, an abuse-of-discretion standard applies." Id.B. First Assignment of Error
{¶ 10} In her first assignment of error, appellant contends the trial court erred in
granting the motion to compel and in finding that she improperly asserted her Fifth
Amendment rights during the deposition. Appellant does not direct us to any particular
assertion but, rather, argues each instance of her Fifth Amendment assertion was proper.
{¶ 11} The Fifth Amendment to the U.S. Constitution provides that "no person
shall be * * * compelled in any criminal case to be a witness against himself." The
No. 14AP-327 6
privilege extends to answers which would in and of themselves support a criminal
conviction as well as answers which would furnish a link in the chain of evidence needed
to prosecute. Hoffman v. United States, 341 U.S. 479, 486 (1951); Maness v. Meyers, 419
U.S. 449, 462 (1975). Moreover, it is well-settled that the constitutional protections
afforded by the Fifth Amendment apply both to the accused in criminal proceedings and
all witnesses in criminal and civil proceedings, including civil pre-trial discovery. See,
e.g., Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); Guy v. Abdulla, 58 F.R.D. 1 (N.D.Ohio
1973); In re Turnmire, 5th Dist. No. 2007-CA-00228, 2008-Ohio-1074; Tedeschi v.
Grover, 39 Ohio App.3d 109 (10th Dist.1988). A party to a civil proceeding does not
waive his privilege against self-incrimination merely by bringing an action to taking the
stand to testify. Shrader v. Equitable Life Assur. Soc., 10 Ohio App.3d 277 (10th
Dist.1983), paragraph one of the syllabus, rev'd on other grounds, 20 Ohio St.3d 41(1985).
{¶ 12} To be entitled to remain silent, there must be a valid assertion of the Fifth
Amendment privilege. In re Morganroth, 718 F.2d 161, 167 (6th Cir.1983). Additionally,
a blanket assertion of the Fifth Amendment privilege by a witness is not sufficient as the
privilege must be asserted by a witness with respect to a particular question, and, in each
instance, the court must determine the propriety of the refusal to testify. Id., citing
Hoffman at 486-88. It is for the court to decide whether a witness's silence is justified
and to require him to answer if it clearly appears to the court that the witness asserting
the privilege is mistaken as to its validity. Id., citing Hoffman; see also In re Rebecca S.,
6th Dist. No. L-96-377 (Oct. 31, 1997), citing State v. Landrum, 53 Ohio St.3d 107, 120
(1990); McGorray v. Sutter, 80 Ohio St. 400 (1909), paragraph two of the syllabus (the
trial judge determines if a witness's testimony would be self-incriminating as the witness's
claim alone is inadequate). "Indeed, the privilege may not be invoked merely by asserting
that the information sought may, in a general sense, be incriminatory." Rebecca S., citing
Cincinnati v. Bawtenheimer, 63 Ohio St.3d 260, 266 (1992).
{¶ 13} Summarizing Morganroth, the court in Rebecca S. stated, "[Morganroth]
concluded that it is not enough that the witness answer each question with a conclusory
statement that the witness is asserting the Fifth Amendment privilege. The witness must
supply 'such additional statements under oath and other evidence' in response to each
No. 14AP-327 7
question so as to enable the court to identify the nature of the criminal charge for which
the witness fears prosecution." Rebecca S., quoting Morganroth at 167 (internal citations
omitted). A valid assertion of the Fifth Amendment privilege exists where a witness has
reasonable cause to apprehend a real danger of incrimination. Morganroth at 167, citing
Hoffman. "A witness must, however, show a 'real danger,' and not a mere imaginary,
remote or speculative possibility of prosecution." Id., citing United States v. Apfelbaum,
445 U.S. 115, 128 (1980). Additionally, "the Fifth Amendment protection against self-
incrimination 'does not extend to consequences of a noncriminal nature.' " United States
v. Conces, 507 F.3d 1028, 1040 (6th Cir.2007), quoting Apfelbaum at 125.
{¶ 14} The Supreme Court of Ohio addressed the question of whether certain
information is so incriminating in nature as to invoke the privilege against self-
incrimination in Bawtenheimer. In addressing said issue, the Bawtenheimer court relied
on the following language from United States v. Sharp, 920 F.2d 1167, 1170 (4th
Cir.1990):
In making this determination, a court asks essentially two
things. The first is whether the information is incriminating
in nature. This may appear in either of two ways. It may be
evident on its face, in light of the question asked and the
circumstances of its asking. * * * If it is so facially evident, that
ends this inquiry. If it is not, the person asserting the
privilege may yet demonstrate its incriminating potential by
further contextual proof.
If the incriminating nature of the information is established
by either route, there remains the question whether criminal
prosecution is sufficiently a possibility, all things considered,
to trigger the need for constitutional protection. As to this, the
proper test simply assesses the objective reasonableness of the
target's claimed apprehension of prosecution.
Bawtenheimer at 266-67. " 'When the danger is not readily apparent from the
implications of the question asked or the circumstances surrounding the inquiry, the
burden of establishing its existence rests on the person claiming the privilege,' and can be
done in camera." Sharma v. New Opal Corp., S.D.N.Y. No. 03 Civ. 9427 (May 5, 2005),
quoting Estate of Fisher v. Commissioner, 905 F.2d 645, 649-50 (2d Cir.1990). Further,
" 'a party to a civil proceeding has no right to continue to assert his claim or defense
No. 14AP-327 8
against an adverse party and at the same time refuse to give pertinent testimony, not
otherwise obtainable, material to the claim or defense of such adverse party.' " Bryant v.
Conrad, 8th Dist. No. 73408 (Dec. 10, 1998), quoting Shrader at 278.
{¶ 15} Appellant's deposition consists of 98 pages of testimony. As is relevant
here, the motion to compel directed the trial court to seven exchanges in which appellant
asserted her Fifth Amendment privilege and refused to answer questions. The first
exchange occurred on page five when appellant's counsel lodged an objection to the third
question of the deposition. The exchange is as follows:
Q. Would you please state your name, your full name.
A. Raquel Nunez Vega.
Q. And have you ever gone by any other names?
A. Yes. Right now I am working under another name.
Q. And what name is that?
Appellant's counsel first objected on the basis of relevance. After arguing about the
propriety of the objection, appellant's counsel objected on the basis of the Fifth
Amendment and instructed appellant not to answer.
{¶ 16} The next exchange occurred on pages seven and eight:
Q. And what's your date of birth?
A. Yes. It is January 15 of '63.
Q. And have you used any other date of births?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
***
Q. Do you have a Social Security number?
Appellant's counsel again objected on the basis of relevance and the Fifth Amendment
and instructed appellant not to answer.
No. 14AP-327 9
{¶ 17} Thereafter, on pages 19 and 20, appellant was asked the names of her
children that lived with her at her prior address, and the following exchange occurred:
Q. At that time who were the other two children?
A. Marcos Eduardo.
Q. How do you spell that?
A. M-A-R-C-O-S, E-D-U-A-R-D-O.
Q. How old is Marcos?
A. Oh, let's see, 21. 21. He's going to be 23. He's 22, he will
be 23.
Q. Where does Marcos live?
[Appellant's counsel]: Objection, relevance. I'm going to say
this. I'm going to object to your harassing line of questioning,
trying to intimidate my client by asking her to identify all of
her relatives that have no bearing on this case.
{¶ 18} Thereafter, on page 22, appellant was being asked about her prior
residences and who lived with her at those addresses, whereupon the following exchange
occurred:
Q. And where is Karla? How do I get in touch with Karla?
A. She's in Mexico.
Q. When did she move back to Mexico?
After appellant's counsel objected on the basis of relevance, counsel for both parties
argued about the matter whereupon appellant's counsel objected on the basis of the Fifth
Amendment and instructed appellant not to answer.
{¶ 19} Though counsel for appellee argued the information was relevant because it
concerned people who lived in appellant's house and people that associated with appellant
at the time of the events at issue, appellant's counsel instructed his client not to answer
based on an assertion of her Fifth Amendment privilege. On pages 24 and 25, when
No. 14AP-327 10
reviewing appellant's educational background, appellant indicated she grew up in Mexico,
and the following exchange occurred:
Q. How long did you live in Mexico?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
Q. When did you move to the United States?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
Q. I take it based upon your attorney's objections you're not a
U.S. citizen. I guess I should say, are you a U.S. citizen?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
Q. Can you tell me what your immigration status is?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
[Appellant's counsel]: If you continue this harassing line of
questioning, I will unilaterally terminate this deposition.
{¶ 20} On pages 26 and 27, the following exchange took place:
Q. And where were you prior to moving to Columbus?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
Q. How long have you lived – when I say Columbus, I mean
the Columbus area. How long have you lived in the Columbus
area? You know, Whitehall, Groveport.
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
Q. Do you currently have a driver's license?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
No. 14AP-327 11
***
Q. Did you have a driver's license back in June – April – we'll
say 2011. Did you have a driver's license then?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
***
Q. Have you had a driver's license, any driver's license from
any state, whether it's Ohio or wherever?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
{¶ 21} Thereafter, the deposition proceeded, and, though there were multiple
objections by appellant's counsel on the basis of relevance and speculation, the next
challenged exchange occurred on pages 72 and 73:
Q. Okay. Let's talk about when you made the final payment.
A. Uh-huh.
Q. Okay. Did you take the car home?
A. No.
Q. Why?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
{¶ 22} The last challenged exchange occurred on page 85 of the deposition as
follows:
Q. Let's talk about May. You saw your car.
A. Yes.
Q. Okay. Where was it?
A. I don't know the body shop. The body shop is in a certain
area.
No. 14AP-327 12
Q. Okay. Where was it parked?
A. Inside. Inside.
Q. Why didn't you take it in May?
[Objection on the basis of relevance and Fifth Amendment,
witness instructed not to answer.]
[Appellee's counsel]: As to why she didn't take it in May?
[Appellant's counsel]: Yes.
[Appellee's counsel]: That's very important, Dan, as to
whether it's an issue of abandonment of the vehicle.
[Appellant's counsel]: I disagree, and I'm instructing her not
to answer.
{¶ 23} The trial court concluded appellant, the plaintiff in this case, was refusing to
answer questions which the trial court believed were "standard in almost any deposition,"
based on an undefined Fifth Amendment privilege. (Apr. 3, 2014 Tr. 39.) Thus, contrary
to appellant's assertion otherwise, the trial court did not conclude that appellant could not
assert her Fifth Amendment privilege at a civil deposition. Rather, the trial court
concluded appellant's assertion of her Fifth Amendment privilege in these instances was
not a valid one.
{¶ 24} To be entitled to remain silent, there must be a valid assertion of the Fifth
Amendment privilege. Morganroth. It is not for the witness, but it is for the court, to
decide whether a witness's silence is justified. Id. As stated in Bawtenheimer, to
determine whether a valid Fifth Amendment privilege has been asserted, a court first asks
if the information is incriminating in nature. Id. at 266-67. It may be evident on its face,
in light of the question asked and the circumstances of its asking, and if it is facially
evident, the inquiry ends. Id. If it is not facially evident, the person asserting the privilege
may yet demonstrate its incriminating potential by further contextual proof. Id. If the
incriminating nature of the information is established by either route, there remains the
question whether criminal prosecution is sufficiently a possibility, all things considered,
to trigger the need for constitutional protection. Id. As to this, the proper test simply
No. 14AP-327 13
assesses the objective reasonableness of the target's claimed apprehension of the
prosecution. Id.
{¶ 25} The setting in which appellant, the plaintiff, asserted her Fifth Amendment
privilege was her civil pre-trial discovery deposition by the opposing party's counsel. The
questions sought information pertaining to appellant's background, the location and
identity of potential witnesses, ownership of the vehicle, and other specific circumstances
surrounding appellant's claims. We cannot say it is facially evident in light of the
questions and the setting in which they were asked that the information is incriminating
in nature as none of the questions call for the admission of a criminal act. Nor can we say
appellant demonstrated the potential incriminating nature by further contextual proof or
that appellant provided a sufficient possibility of criminal prosecution, all things
considered, to trigger the need for constitutional protection. Id.
{¶ 26} "[T]he [Fifth Amendment] privilege against self-incrimination may not be
invoked merely by asserting that the information sought by the government may in a
general sense be incriminatory." (Emphasis added.) Id. at 266. Additionally, as we
previously stated, "[w]hether there is a sufficient hazard of incrimination is a question for
the court which is asked to enforce the privilege." Id. In this case, the objections lodged
by appellant's counsel at her deposition were consistently based on relevance, but when
appellee's counsel argued that an objection based on relevance did not permit a witness to
refuse to answer, appellant's counsel asserted appellant's Fifth Amendment privilege
without any specificity regarding the same.
{¶ 27} In her memorandum contra to appellee's motion to compel, appellant again
failed to set forth any specific basis for the Fifth Amendment assertion but, rather, argued
generally that each assertion was appropriate because the questions were "irrelevant
questions about her national heritage" for which she asserted "her constitutional right to
refuse to answer." (Memorandum Contra, 1.) Though citing to an article from the
American Civil Liberties Union Foundation Women's Rights Project that indicates a
witness may assert a Fifth Amendment privilege for fear of prosecution regarding the "use
of false identification documents, failure to depart the U.S. within 90 days of an order of
deportation, unlawful entry or attempted entry into the country, unlawful re-entry after
being deported or denied admission, and false representation of self as a U.S. citizen,"
No. 14AP-327 14
appellant's memorandum contra is devoid of any indication that she possesses any fear of
prosecution of any criminal act. (Memorandum Contra, 4-5.) Similarly, at the hearing on
the motion to compel, appellant's counsel provided no additional specificity other than to
assert that the questions by appellee's counsel were "clearly meant to just intimidate and
harass my client about her national heritage." (Apr. 3, 2014 Tr. 14-15.)
{¶ 28} To this court, appellant contends she has an absolute right to assert her
Fifth Amendment privilege at a pre-trial deposition. However, for such to constitute a
valid assertion of her Fifth Amendment right, a basis for the same must be established.
"The witness must supply 'such additional statements under oath and other evidence' in
response to each question so as to enable the court to identify the nature of the criminal
charge for which the witness fears prosecution." Rebecca S., quoting Morganroth at 167.
"A witness must, however, show a 'real danger,' and not a mere imaginary, remote or
speculative possibility of prosecution." Morganroth at 167. Not only does this record fail
to show a "real danger" of prosecution, but, also, this record is devoid of any evidence that
appellant possesses any fear of prosecution for any criminal act. Though appellant
contends her assertions were valid, to find in appellant's favor in this case would require
us to find that when a plaintiff refuses to answer questions in a deposition based on a
general assertion of the Fifth Amendment privilege, that assertion is valid solely because
the plaintiff testified he or she moved to the United States from another country and is,
according to appellant's memorandum contra to appellee's motion to compel, "Spanish-
speaking." We believe state precedent, as well as federal, makes clear that we cannot so
find.
{¶ 29} Though vaguely contending that responding to the questions in appellee's
motion to compel might tend to incriminate her, appellant has not suggested any way in
which the trial court's order poses a genuine threat to her Fifth Amendment privilege
against self-incrimination, and appellant has not demonstrated that she has reasonable
cause to apprehend a real danger of incrimination if she were to respond to the questions
raised in the motion to compel. Accordingly, we find no error in the trial court's order
granting appellee's motion to compel, and we overrule appellant's first assignment of
error.
No. 14AP-327 15
C. Second Assignment of Error
{¶ 30} In her second assignment of error, appellant asserts the trial court erred in
awarding sanctions against appellant and her counsel for the assertion of her Fifth
Amendment privilege.
{¶ 31} First, we note the trial court has yet to issue a monetary award of sanctions.
At the hearing on the motion to compel, as well as the entry granting the motion to
compel, the trial court stated that appellant and her counsel would be responsible for
paying appellee's reasonable expenses, including attorney fees, in obtaining the order.
However, the trial court also stated that a subsequent hearing would be held to determine
the amount to be paid. As held in Randall, generally the granting or denying of sanctions
accompanying a discovery order is not a final, appealable order. Id. at ¶ 19, citing Longo
v. Bender, 11th Dist. No. 2006-G-2699, 2006-Ohio-2239, ¶ 4 ("The granting of sanctions
accompanying a discovery order is not final and appealable."); Chuparkoff v. Farmers
Ins. of Columbus, Inc., 9th Dist. No. 22083, 2004-Ohio-7185, ¶ 15 ("a denial of sanctions
accompanying a discovery order is not final and appealable").
{¶ 32} Because the issue raised in appellant's second assignment of error is not yet
ripe for review, we dismiss appellant's second assignment of error.
D. Third Assignment of Error
{¶ 33} In her third assignment of error, appellant contends the trial court's
judgment entry is impermissibly vague. According to appellant, it is unclear what
questions appellant was not permitted to refuse to answer on the basis of her Fifth
Amendment privilege and what she and her counsel are required to do to avoid future
sanctions.
{¶ 34} As we have previously set forth, the motion to compel outlined seven
exchanges in which appellee believed the Fifth Amendment privilege was improperly
asserted. In her memorandum contra, as well as during the hearing on the motion to
compel, appellant argued that each assertion was valid. The trial court granted appellee's
motion to compel in toto, specifically concluding that appellant improperly invoked a
Fifth Amendment privilege and that appellant was not substantially justified in refusing to
answer those questions. The court ordered appellant to answer those questions and
answer all questions without improperly asserting her Fifth Amendment privilege.
No. 14AP-327 16
{¶ 35} We do not believe the order is impermissibly vague. It requires appellant to
answer the questions raised in appellee's motion to compel, but it also allows appellant to
assert her Fifth Amendment privilege during her subsequent deposition as long as she
does so properly. Whether any future assertions of her Fifth Amendment privilege will be
proper is something that cannot be answered or predicted at this juncture as it will be
dependent on a variety of factors that have been discussed infra. Additionally, the
ultimate admissibility of any answer appellant may give and the consequences of
declining to answer any specific question are issues for the trial court to resolve if and
when called to do so.
{¶ 36} Accordingly, we overrule appellant's third assignment of error.
E. Fourth Assignment of Error
{¶ 37} In her fourth assignment of error, appellant asserts the trial court erred in
granting appellee's motion to compel because appellee failed to present any admissible
evidence in support of his motion. Attached to the motion to compel were several
transcript pages containing the challenged exchanges. Because the pages were
uncertified, appellant contends they were not properly before the court such that the trial
court had no evidence before it to justify granting the motion to compel.
{¶ 38} As previously indicated, the trial court held a hearing on appellee's motion
to compel. At that hearing, appellee's counsel stated that, at the time they filed the
motion to compel, the transcript had just been made available, but the court reporter had
not yet completed the signature page and the review by appellant. Thus, appellee's
counsel stated "[t]hat's now, I understand, been done, and we will have the whole
transcript filed with the Court. I have a copy of the transcript, and I'm happy to provide to
the Court." (Apr. 3, 2014 Tr. 27-28.)
{¶ 39} Reading from the deposition transcript at the hearing, appellee's counsel
read into the record the challenged exchanges from the deposition. Appellee does not
assert that the portions of the transcript inaccurately reflected what occurred at the
deposition. Instead, it is undisputed that appellant's counsel instructed appellant not to
answer various questions during the deposition based on an assertion of her Fifth
Amendment privilege. Given the state of this record, we cannot conclude the trial court
had nothing before it from which to enter an order on the motion to compel.
No. 14AP-327 17
{¶ 40} Accordingly, we overrule appellant's fourth assignment of error.
F. Fifth Assignment of Error
{¶ 41} In her fifth assignment of error, appellant asserts the trial court erred in
granting appellee's motion to compel because appellee failed to make a reasonable
attempt to resolve the discovery dispute before filing the motion. This court has held that
a trial court does not abuse its discretion in denying a motion to compel when the moving
party has failed to comply with the requirements of Civ.R. 37(E).2 See, e.g., Deutsche
Bank Natl. Trust Co. v. Doucet, 10th Dist. No. 07AP-453, 2008-Ohio-589, ¶ 20, citing 513
E. Rich St. Co. v. McGreevy, 10th Dist. No. 02AP-1207, 2003-Ohio-2487, ¶ 11, citing
Briggs v. Glenbeigh Health Servs., 8th Dist. No. 77395 (Nov. 30, 2000) (affirming denial
of motion to compel where movant failed to informally resolve dispute). Unlike those
cases in which a trial court denied a motion to compel without a hearing, here we are
presented with a scenario in which the trial court granted a motion to compel after having
an oral hearing on the issue.
{¶ 42} At the hearing on the motion to compel, appellee responded to appellant's
argument that sufficient efforts to resolve the matter without court intervention had not
been made. Appellee's counsel stated that the deposition transcript was "replete" with
"repeated efforts" to revolve these issues, but after "it was made clear that [appellant] was
not going to answer the questions, and the only recourse we have at that point is to ask the
Court to intercede." (Apr. 3, 2014 Tr. 4.) Additionally, appellee's counsel stated that
during the deposition, he suggested the parties contact the trial court in an effort to
resolve the matter at that time. Appellee's counsel stated:
I did try to resolve it. I called down here to the courthouse.
You were gone. Karen indicated that the Court doesn't
entertain these things, to move on, and I understand why
because usually you get the answer if it's an objection, answer
the question, and you move on. It didn't happen here.
(Apr. 3, 2014 Tr. 29.)
2 Civ.R. 37(E) provides that before filing a motion authorized by Civ.R. 37, "the party shall make a
reasonable effort to resolve the matter through discussion with the attorney, unrepresented party, or person
from whom discovery is sought."
No. 14AP-327 18
{¶ 43} We conclude the record demonstrates appellee's compliance with Civ.R.
37(E). Moreover, as stated by the Ninth District Court of Appeals in Spragling v. Oriana
House, Inc., 9th Dist. No. 23501, 2007-Ohio-3245, the purpose of Civ.R. 37(E) is to
endorse the self-regulating aspect of discovery and to require court intervention only as a
last resort. Id. at ¶ 7, citing Unklesbay v. Fenwick, 167 Ohio App.3d 408, 2006-Ohio-
2630, ¶ 10 (2d Dist.). While a deficient showing under Civ.R. 37(E) could justify the
denial of a motion to compel, " 'once a trial court has gone to the trouble of conducting a
hearing on a motion and issuing a decision resolving the parties' dispute, as the trial court
has done in this case, we see no useful purpose in invoking Civ.R. 37(E)—which is
intended to benefit the trial court—to reverse its judgment and force the court to begin its
work again after the filing of a renewed motion to compel.' " Id., quoting Unklesbay at ¶
10. Accordingly, we overrule appellant's fifth assignment of error.
IV. CONCLUSION
{¶ 44} Having dismissed appellant's second assignment of error and overruled the
remaining, the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
CONNOR and O'GRADY, JJ., concur.
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