Burnham v. Cleveland Clinic (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8000
BURNHAM, APPELLEE, v. CLEVELAND CLINIC ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Burnham v. Cleveland Clinic, Slip Opinion No.
2016-Ohio-8000.]
Privilege—Work-product doctrine—Order compelling production of materials
alleged to be protected by the attorney-client privilege is a final, appealable
order—Smith v. Chen, limited.
(No. 2015-1127—Submitted May 4, 2016—Decided December 7, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 102038,
2015-Ohio-2044.
_____________________
LANZINGER, J.
{¶ 1} We accepted this discretionary appeal to resolve whether an order
compelling the production of documents allegedly protected by the attorney-client
privilege is a final, appealable order under R.C. 2505.02(B)(4). We also accepted
review to clarify our holding regarding privilege, the attorney work-product
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doctrine, and R.C. 2505.02(B)(4)(b) in Smith v. Chen, 142 Ohio St. 3d 411, 2015-
Ohio-1480, 31 N.E.3d 633.
{¶ 2} We hold that an order requiring the production of information
protected by the attorney-client privilege causes harm and prejudice that inherently
cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery
order that is alleged to breach the confidentiality guaranteed by the attorney-client
privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is
potentially subject to immediate review. Other discovery protections that do not
involve common law, constitutional, or statutory guarantees of confidentiality, such
as the attorney work-product doctrine, may require a showing under R.C.
2505.02(B)(4)(b) beyond the mere statement that the matter is privileged. Our
holding in Chen is limited to the latter context.
{¶ 3} Because appellants, the Cleveland Clinic and Cleveland Clinic Health
System (“Clinic”), have plausibly alleged that the attorney-client privilege would
be breached by disclosure of the requested materials, the order compelling the
disclosure is a final, appealable order. Contrary to the dissent’s view, we are not
characterizing the requested material as being covered by the attorney–client
privilege, but are merely requiring appellate review of the trial court’s decision.
We therefore reverse the dismissal of the appeal and remand to the court of appeals
to determine whether the trial court erred in ordering the incident report released.
BACKGROUND
{¶ 4} In March 2014, appellee, Darlene Burnham, brought a personal-injury
action against the Clinic and certain Clinic employees. She alleged that she had
slipped and fallen in her sister’s hospital room at the Clinic in July 2012. Allegedly,
an employee had poured liquid on the floor and had failed to warn Burnham of the
hazardous condition.
{¶ 5} During discovery, Burnham requested identification of any person
who had made statements or reports about her accident and copies of any written
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statements or reports. Although the employee involved was identified, neither party
could locate her for deposition. Burnham also requested an incident report that she
learned had been created. But the Clinic alleged that the report was not
discoverable because it was shielded by various discovery protections, including
the attorney-client privilege.
{¶ 6} Burnham filed a motion to compel discovery. The trial court ordered
the Clinic to provide Burnham with a privilege log and directed the parties to brief
the issue of privilege. Included with the Clinic’s privilege log, filed under seal, was
a copy of the report and an affidavit from the Clinic’s deputy chief legal officer
averring that the report had been generated as part of its protocol to notify the
Clinic’s legal department of events that might be the basis for legal action. After
reviewing the parties’ briefs and the privilege log, the court concluded that
Burnham’s motion to compel should be granted. The court ordered the Clinic to
produce the July 2012 incident report.
{¶ 7} The Clinic appealed to the Eighth District Court of Appeals, arguing
that the incident report was protected by the attorney-client privilege and was not
discoverable. The Eighth District dismissed the appeal for lack of jurisdiction,
citing Smith v. Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633. The
appellate court held that there was no final, appealable order to review because the
Clinic had failed to affirmatively establish that there would be prejudice resulting
from disclosure of the incident report sufficient to satisfy R.C. 2505.02(B)(4).
2015-Ohio-2044, ¶ 13.
{¶ 8} We accepted the appeal on one proposition of law: “An order
requiring production of privileged documents, conversations or other materials is a
final, appealable order pursuant to R.C. 2505.02(B)(4), thereby conferring
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jurisdiction over the issue to the court of appeals under Article IV, Section
3(B)(2).”1 144 Ohio St. 3d 1425, 2015-Ohio-5225, 42 N.E.3d 762.
LEGAL ANALYSIS
{¶ 9} We accepted jurisdiction to clarify Chen, a case that reviewed R.C.
2505.02(B)(4)(b) to determine whether a discovery order involving attorney work
product was final and appealable. As some confusion seems to exist over the
breadth of that decision, we limit it solely to its facts. We see no need to overrule
the case altogether despite the impassioned arguments within the lengthy
concurring opinion.
{¶ 10} Here, the Clinic asserts that its report is protected under the attorney-
client privilege and that an order requiring disclosure should be reviewable
immediately. R.C. 2505.02(B) states that an order is final and reviewable when it
is:
(4) An order that grants or denies a provisional remedy and * * *
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor
of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues,
claims, and parties in the action.
A provisional remedy is defined as “a proceeding ancillary to an action, including,
but not limited to * * * discovery of privileged matter.” R.C. 2505.02(A)(3).
1. This provision of the Ohio Constitution states: “Courts of appeals shall have such jurisdiction as
may be provided by law to review and affirm, modify, or reverse judgments or final orders of the
courts of record inferior to the court of appeals within the district * * *.”
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{¶ 11} Chen, although considering the same statutory language, involved
only the attorney work-product doctrine rather than the attorney-client privilege and
does not determine the outcome here.
Smith v. Chen
{¶ 12} In a medical malpractice action brought by Henry Smith against Dr.
Ying Chen and OrthoNeuro (“Chen”), the trial court ordered Chen to disclose a
video-surveillance recording that his attorney had prepared for use as impeachment
evidence at trial. Smith v. Chen, Franklin C.P. No. 10 CV 18058 (Dec. 5, 2012).
Chen had claimed that the video was privileged as attorney work product pursuant
to Civ.R. 26(B)(3), which allows discovery of the opposing party’s attorney work
product “only upon a showing of good cause.” The trial court found the plaintiff
to have shown good cause because the risk to Smith of surprise and unfairness
during trial outweighed Chen’s interest in nondisclosure prior to trial.
{¶ 13} The Tenth District Court of Appeals affirmed the trial court’s order.
While acknowledging that discovery orders are interlocutory and therefore
generally not final and appealable, it held that it had appellate jurisdiction over
discovery orders involving privilege. Smith v. Chen, 10th Dist. Franklin No. 12AP-
1027, 2013-Ohio-4931, ¶ 10. The court of appeals stated that because the attorney
work-product doctrine is a “qualified privilege,” an order for its disclosure is final
and appealable. Id. at ¶ 11.
{¶ 14} We initially accepted discretionary review on whether an order
compelling production of surveillance video created only for impeachment
purposes violates the attorney work-product doctrine of Civ.R. 26(B)(3). 138 Ohio
St.3d 1447, 2014-Ohio-1182, 5 N.E.3d 666. We later ordered the parties to show
cause why the matter should not have been dismissed for lack of a final, appealable
order pursuant to R.C. 2505.02. Smith v. Chen, 141 Ohio St. 3d 1461, 2015-Ohio-
370, 24 N.E.3d 1180. In his response, Chen merely repeated the appellate court’s
observation regarding qualified privileges. 2013-Ohio-4931, at ¶ 11. We
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concluded that Chen had failed to satisfy R.C. 2505.02(B)(4)(b), which requires an
appellant to establish that he “ ‘would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.’ ” Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d
633, at ¶ 5, quoting R.C. 2505.02(B)(4). We noted:
This ruling does not adopt a new rule, nor does it make an appeal
from an order compelling disclosure of privileged material more
difficult to maintain. An order compelling disclosure of privileged
material that would truly render a postjudgment appeal meaningless
or ineffective may still be considered on an immediate appeal.
(Emphasis sic.) Id. at ¶ 9. This language concerning “privilege” may seem to
extend to all discovery orders. However, we emphasized that Chen involved a
failure to respond to the issue being adjudicated:
Dr. Chen and OrthoNeuro have never argued, much less established,
that they would not be afforded a meaningful or effective remedy
through an appeal after a final judgment is entered by the trial court
resolving the entire case. They did not address the issue in any of
their briefs here or in the court of appeals. The only reference to the
statute defining final, appealable order that Dr. Chen and
OrthoNeuro make is in their docketing statement filed in the court
of appeals, in which the statute is listed as a statute requiring
interpretation or application on appeal. Notably, Dr. Chen and
OrthoNeuro again failed to address the requirement in R.C.
2505.02(B)(4)(b) after this court ordered them to show cause why
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this matter should not be dismissed for lack of a final, appealable
order.
Chen at ¶ 6.
{¶ 15} In addition to the explicitly limited nature of our holding in Chen,
differences between the attorney-client privilege and the attorney work-product
doctrine make clear why Chen does not control the outcome of this case. The
attorney-client privilege and the attorney-work-product doctrine provide different
levels of protection over distinct interests, meaning that orders forcing disclosure
in these two types of discovery disputes do not necessarily have the same result that
allows an immediate appeal.
Attorney-client privilege v. work product
{¶ 16} The concurring justice would have us overrule Chen and treat
attorney work- product and attorney-client privilege the same. But the attorney-
client privilege and the attorney work-product doctrine do not share the same
origins or occupy the same provisions of statutory or common law. The main
purpose behind the attorney-client privilege is to promote “ ‘full and frank
communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and the administration of justice.’ ” Boone
v. Vanliner Ins. Co., 91 Ohio St. 3d 209, 210, 744 N.E.2d 154 (2001), fn. 2, quoting
Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584
(1981). On the other hand “[t]he purpose of the work-product doctrine is ‘to
prevent an attorney from taking undue advantage of his adversary’s industry or
efforts.’ ” Id. quoting Civ.R. 26(A)(2). Although both the attorney-client privilege
and the work-product doctrine might often apply to the same material, the
protections do not overlap completely. See In re Election of Nov. 6, 1990 for the
Office of Atty. Gen. of Ohio, 57 Ohio St. 3d 614, 615, 567 N.E.2d 243 (1991).
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{¶ 17} The attorney-client privilege is one of the oldest privileges
recognized in the common law. Swidler & Berlin v. United States, 524 U.S. 399,
403, 118 S. Ct. 2081, 141 L. Ed. 2d 379 (1998). In Ohio, the testimonial privilege is
governed by R.C. 2317.02, which prohibits attorneys from revealing
communications that a client made to an attorney. The privilege belongs to the
client, and unless a wavier or other exception causes the privilege to not apply, it
offers full protection from discovery. R.C. 2317.02(A); Civ.R. 26(B)(1).
{¶ 18} By contrast, an attorney’s work product is not included among the
privileges protected by R.C. 2317.02 or the common law. Hickman v. Taylor, 329
U.S. 495, 508, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (the protections of attorney-client
privilege do not extend to an attorney’s work or information collected). In Ohio,
protection for an attorney’s work product is codified in Civ.R. 26, which notably
recognizes work product as separate from privileged matters. See Civ.R. 26(B)(6)
(differentiating between privilege and protection of trial-preparation material). See
also 1980 Staff Note, Evid. R. 501 (attorney work product is not governed by
privilege rules as held in Hickman). The protection belongs to the attorney, but
Civ.R. 26(B)(6) allows the protection to be removed by an opposing party’s
demonstration of a need for the materials. Jackson v. Greger, 110 Ohio St. 3d 488,
2006-Ohio-4968, 854 N.E.2d 487, paragraph two of the syllabus and ¶ 16; Civ.R.
26(B)(3). Thus, the common law and judicial rules recognize the attorney work-
product doctrine as a rule that may provide protection from discovery.
{¶ 19} We have long recognized that the protection against discovery of
matters identified as “privileged” in Civ.R. 26(B)(1) is limited to those derived
from a specific constitutional or statutory provision. State ex rel. Grandview Hosp.
& Med. Ctr. v. Gorman, 51 Ohio St. 3d 94, 95, 554 N.E.2d 1297 (1990), citing In
re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953). Although not technically
a privilege in the strict sense, the attorney work-product doctrine is frequently
called a privilege in the popular sense. See, e.g., United States v. Nobles, 422 U.S.
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225, 239, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975); Squire, Sanders & Dempsey,
L.L.P. v. Givaudan Flavors Corp., 127 Ohio St. 3d 161, 2010-Ohio-4469, 937
N.E.2d 533, ¶ 55; Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at
¶ 9. Using “privilege” as shorthand for the attorney work-product doctrine can be
useful in many contexts when it promotes conceptual simplicity. But the use of
“privilege” as shorthand does not cause an attorney’s work product to be on the
same footing as a client’s substantive right to confidentiality.
Interlocutory appeal of discovery orders
{¶ 20} To show that an order for a provisional remedy such as the discovery
of privileged or protected materials is final and appealable, R.C. 2505.02(B)(4)(a)
requires a showing that the order determines the privilege issue and prevents a
judgment in favor of the appellant regarding that issue, while R.C. 2505.02(B)(4)(b)
requires a showing that the harm caused by the privilege-related discovery order
cannot be meaningfully or effectively remedied by an appeal after final judgment.
See State v. Muncie, 91 Ohio St. 3d 440, 446, 746 N.E.2d 1092 (2001).
{¶ 21} Any order compelling the production of privileged or protected
materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be impossible
to later obtain a judgment denying the motion to compel disclosure if the party has
already disclosed the materials. But the irreversible nature of the order alone does
not satisfy R.C. 2505.02(B)(4)(b), which requires consideration of whether an
appeal after judgment can rectify the damage of an erroneous trial court ruling.
Muncie at 451. Given the differing interests and protections of the attorney-client
privilege and the attorney work-product doctrine, the damage that needs to be
rectified and the need for immediate appeal may differ as well.
{¶ 22} R.C. 2505.02(B)(4)(b) recognizes that in certain situations, the need
for immediate review outweighs the substantial interest in avoiding piecemeal
litigation. This recognition has its roots in Amato v. Gen. Motors Corp., 67 Ohio
St.2d 253, 423 N.E.2d 452 (1981), overruled by Polikoff v. Adam, 67 Ohio St. 3d
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100, 616 N.E.2d 213 (1993), at syllabus. Amato expanded upon the special-
proceeding standard now found in R.C. 2505.02(A)(2) and provided a balancing
test to determine whether a special proceeding—and thereby a final, appealable
order—was involved: “This test weighs the harm to the ‘prompt and orderly
disposition of litigation,’ and the consequent waste of judicial resources, resulting
from the allowance of an appeal, with the need for immediate review because
appeal after final judgment is not practicable.” Amato at 258.
{¶ 23} Polikoff rejected this balancing test to determine whether a “special
proceeding” existed and overruled Amato. Although discovery orders were then
held to be interlocutory and not immediately appealable, we noted that it was the
General Assembly’s prerogative to expand the scope of R.C. 2505.02 to include
matters such as discovery orders. Walters v. Enrichment Ctr. of Wishing Well, Inc.,
78 Ohio St. 3d 118, 122-123, 676 N.E.2d 890 (1997), fn. 2. Shortly after Walters,
the legislature amended R.C. 2505.02(B)(4)(b), 1998 Sub.H.B. No. 394, 147 Ohio
Laws, Part II, 3277, 3278, to essentially adopt the Amato balancing test. Thus,
although Amato and related cases were overruled, the reasoning in those cases
provides insight into the application of R.C. 2505.02(B)(4)(b).
{¶ 24} Under the Amato standard, we had held that discovery orders that
breached a protected interest in confidentiality were final, appealable orders.
Humphry v. Riverside Methodist Hosp., 22 Ohio St. 3d 94, 488 N.E.2d 877 (1986)
(physician-patient privilege); State v. Port Clinton Fisheries, Inc., 12 Ohio St. 3d
114, 465 N.E.2d 865 (1984) (informant confidentiality). The reason for finding an
immediate need for review in those cases was that they
implicated underlying privacy or law enforcement interests that
extended beyond any particular litigation. While an appellate court
could provide some relief after final judgment from the disclosure
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of such privileged information, such relief could not adequately
undo the extrajudicial harm done to those interests by disclosure.
Nelson v. Toledo Oxygen & Equip. Co., Inc., 63 Ohio St. 3d 385, 389, 588 N.E.2d
789 (1992). Under the same standard, we determined that an order compelling
production of materials allegedly protected by the work-product doctrine under
Civ.R. 26(B)(3) was not a final, appealable order. Nelson at syllabus. The reason
for finding no need for immediate review in this latter situation was:
Because the work-product exemption protects materials that are
peculiarly related to litigation, any harm that might result from the
disclosure of those materials will likewise be related to litigation.
An appellate court review of such litigation will necessarily be able
to provide relief from the erroneous disclosure of work-product
materials.
Id. at 389.
{¶ 25} Exposure of the information that is to be protected by attorney-client
privilege destroys the confidentiality of possibly highly personal or sensitive
information that must be presumed to be unreachable. Taylor v. Sheldon, 172 Ohio
St. 118, 121, 173 N.E.2d 892 (1961). We have already recognized that an order
compelling production of material covered by the attorney-client privilege is an
example of that for which there is no effective remedy other than immediate appeal
as contemplated by R.C. 2505.02(B)(4)(b). Muncie, 91 Ohio St. 3d at 451, 746
N.E.2d 1092 (2001), citing Cuervo v. Snell, 10th Dist. Franklin Nos. 99AP-1442,
99AP-1443, and 99AP-1458, 2000 WL 1376510 (Sept. 26, 2000).
{¶ 26} But the same guarantee of confidentiality is not at risk with an
attorney’s work product. And as we stated in Nelson, any harm from disclosure
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would likely relate to the case being litigated, meaning that appellate review would
more likely provide appropriate relief. Nelson at 389. This is not to say that
compelling the disclosure of an attorney’s work product pursuant to Civ.R.
26(B)(3) would never satisfy R.C. 2505.02(B)(4)(b) and require an interlocutory
appeal. But it does not necessarily involve the inherent, extrajudicial harm involved
with a breach of the attorney-client privilege.
Limitation of Chen
{¶ 27} We were unable to explore the relationship between the attorney
work-product doctrine and R.C. 2505.02(B)(4)(b) in Chen despite our request to
show cause. We dismissed Chen for lack of a final, appealable order, holding that
an appellant must demonstrate that “[a]n order compelling disclosure of privileged
material [ ] would truly render a postjudgment appeal meaningless or ineffective.”
(Emphasis sic.) Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at
¶ 9. Our use of “privilege” in the looser, popular sense seems to have suggested
that Chen did create a new rule. But Chen’s actual holding was not broad or
expansive, being limited to the attorney work-product doctrine. We now clarify
that Chen did not apply to the attorney-client privilege.
{¶ 28} Finally, because responses to motions to compel may assert various
claims of privilege in resisting disclosure of materials, a trial court should explain
why a motion granting production has been granted. In that way, a reviewing court
can determine the pertinent issues and whether the requirements of R.C.
2505.02(B)(4)(a) and (b) are satisfied.
{¶ 29} Here, although the trial court’s order compelling the disclosure of
the Clinic’s incident report did not specify why it was rejecting the claim of
attorney-client privilege or other protections claimed, it is clear from the briefing
that the attorney-client privilege had been rejected and was the only remaining
discovery protection being sought. Because the Clinic raised a colorable claim that
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its report was protected by the attorney-client privilege, the court’s order
compelling disclosure of that report was a final, appealable order.
CONCLUSION
{¶ 30} An order compelling the production of materials alleged to be
protected by the attorney-client privilege is a final, appealable order under R.C.
2505.02(B)(4). Prejudice would be inherent in violating the confidentiality
guaranteed by the attorney-client privilege, and therefore, an appeal after final
judgment would not provide an adequate remedy. We reverse the judgment of the
Eighth District Court of Appeals and remand the cause to that court for
consideration of the merits of the Clinic’s appeal.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and O’NEILL, J., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by
O’DONNELL and FRENCH, JJ.
PFEIFER, J., dissents, with an opinion.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 31} I concur that the trial court’s order to provide Darlene Burnham with
the Cleveland Clinic’s July 2012 incident report is final and appealable. I cannot
join in the court’s opinion, however, because its analysis is incomplete and
disingenuous.
{¶ 32} Before this court’s decision in Smith v. Chen, the law of whether a
trial court’s order to compel discovery of a privileged document was a final,
appealable order was stable and predictable. 142 Ohio St. 3d 411, 2015-Ohio-1480,
31 N.E.3d 633, at ¶ 14 (Kennedy, J., dissenting). Every appellate district across
Ohio had determined that “[o]rders compelling discovery of privileged information
[were] “final, appealable orders under R.C. 2505.02(B)(4).” Id. In holding
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otherwise, Chen did not distinguish between material privileged as attorney work
product or as attorney-client communications. Id. at ¶ 5, 8, 9.
{¶ 33} As a result of Chen, a split has now developed among the appellate
districts. See Walker v. Taco Bell, 1st Dist. Hamilton No. C-150182, 2016-Ohio-
124, ¶ 8; Nationwide Mut. Fire Ins. Co. v. Jones, 4th Dist. Scioto No. 15CA3709,
2016-Ohio-513, ¶ 11; Lavin v. Hervey, 5th Dist. Stark No. 2015CA00021, 2015-
Ohio-3458, ¶ 12. Instead of admitting its mistake and overruling Chen with the
tripartite test established in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-
Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus, the court’s opinion
doubles down and creates new law wherein a discovery order that is alleged to
breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C.
2505.02(B)(4)(b) and is a final, appealable order, [but] [o]ther discovery
protections that do not involve common law, constitutional, or statutory guarantees
of confidentiality, such as the attorney work-product doctrine, may require a
showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is
privileged. (Emphasis added.) Court opinion at ¶ 2.
{¶ 34} This conclusion, however, is myopic. It does not recognize the
common-law origins of the work-product doctrine and that some of the protection
provided by the work-product doctrine exceed the protection of Civ.R. 26(B)(3).
The conclusion also elevates statutory privileges over the work-product doctrine
set forth in Civ.R. 26(B)(3), even though the Civil Rules are promulgated pursuant
to the authority conferred upon the court by the Ohio Constitution.
{¶ 35} Moreover, the conclusion ignores that Civ.R. 26 provides protection
to a broader class of documents and materials than does the attorney-client
privilege. Accordingly, the court’s opinion is denying “a meaningful or effective
remedy by an appeal following final judgment,” R.C. 2505.02(B)(4)(b), to orders
to produce documents protected by the work-product doctrine. See State v. Muncie,
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91 Ohio St. 3d 440, 451, 746 N.E.2d 1092 (2001). The consequences will be far-
reaching.
{¶ 36} Because I cannot agree that the protection afforded attorney work
product can be parsed between whether we use the word privilege in a “strict” or
“loose” sense or that an order compelling the disclosure of attorney work product
will render a “meaningful or effective remedy” on appeal, I concur in judgment
only. I would hold that an order requiring the release of privileged documents,
whether protected by the attorney-client privilege or work-product doctrine, is a
final, appealable order because the “ ‘proverbial bell cannot be unrung,’ ” Muncie
at 451, quoting Gibson-Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No.
19358, 1999 WL 980562, *2 (Oct. 27, 1999). I would therefore overrule Chen in
accord with Galatis and restore stability and predictability to Ohio law.
I. Smith v. Chen
{¶ 37} The court’s opinion obfuscates its holding in Chen, alternatively
limiting Chen to “its facts,” Court opinion at ¶ 9, when not limiting it to all cases
involving the work-product doctrine, Court opinion at ¶ 14. This is all after creating
a new, mysterious test for determining whether discovery orders in work-product-
doctrine cases are final, appealable orders, Court opinion at ¶ 2. Henceforth, says
the court opinion, discovery protections involving the attorney work-product
doctrine “may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere
statement that the matter is privileged.” (Emphasis added.) Court opinion at ¶ 2.
The court offers no pathway for judges and litigants to determine when, how, or
before whom that showing is to be made.
{¶ 38} For a case that has no bearing on the instant controversy and does
not announce a “new rule,” Court opinion at ¶ 14, the court’s opinion expends pages
explaining and defending its decision in Chen, a case that was dismissed for lack
of a final, appealable order. While the treatment of Chen in this case is perplexing,
blaming Chen’s counsel for the erroneous outcome because “Chen involved a
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failure to respond the issue being adjudicated” is inexcusable. Court opinion at
¶ 14.
{¶ 39} We accepted the following proposition of law in Chen: “The Tenth
District’s decision is one of first impression in that it has allowed during the course
of discovery for the production of surveillance videotapes to be used for
impeachment purposes in direct violation of Ohio’s work-product doctrine as set
forth in Civ.R. 26(B)(3).” State v. Chen, 138 Ohio St. 3d 1447, 2014-Ohio-1182, 5
N.E.3d 666.
{¶ 40} Because this court issued a show-cause order on a matter that “was
not raised or briefed by the parties,” Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480,
31 N.E.3d 633, at ¶ 12 (Kennedy, J., dissenting), I’m not sure what counsel for
Chen could have done to satisfactorily obey the court’s order. This court does not
permit the submission of evidence on appeal. State v. McKelton, __ Ohio St.3d __,
2016-Ohio-5735, __ N.E.2d __, ¶ 79, citing State v. Keith, 79 Ohio St. 3d 514, 536-
537, 684 N.E.2d 47 (1997). Therefore, counsel for Chen responded in the only
manner possible, by citing the law in its appellate district: “[T]he Tenth District
Court of Appeals’ determination that the discovery order commanding the release
of attorney work product was a final, appealable order.” Chen at ¶ 12 (Kennedy, J.
dissenting). This court ignored, however, the appellate court’s discussion of “the
interlocutory nature of discovery orders” and its reliance on the established
precedent of Legg v. Hallet, 10th Dist. Franklin No. 07AP-170, 2007-Ohio-6595,
¶ 15. Chen, at ¶ 13 (Kennedy, J. dissenting). Also ignored was the fact that counsel
for Smith did not respond to the show-cause order at all. Counsel for Chen fulfilled
their professional duties before this court.
II. Attorney-Client Privilege and Work-Product Privilege Generally
{¶ 41} In its attempt to salvage Chen, the court opinion manufactures an
artificial distinction between a “strict sense” and a “popular sense” of “privilege”
and then creates a narrative to support the appearance of adhering to precedent.
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“Privilege” is defined as a “special legal right, exemption, or immunity granted to
a person or class of persons; an exemption to a duty.” Black’s Law Dictionary 1390
(10th Ed.2014). As it relates to discovery, privilege provides “qualified immunity
of an attorney’s work product from discovery or other compelled disclosure.” Id.
at 1844. A “privileged communication” is a “communication that is protected by
law from compelled disclosure in a legal proceeding.” Id. at 337. “Attorney-client
privilege” is the “client’s right to refuse to disclose and to prevent any other person
from disclosing confidential communications between the client and the attorney.
Id. at 1391. In other words, both the work-product doctrine and attorney-client
privilege involve privilege.
{¶ 42} In Squire, Sanders & Dempsey, L.L.P v. Givaudan Flavors Corp.,
we explained the distinction between the attorney-client privilege and the work-
product privilege. 127 Ohio St. 3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 16 and
55. Recognized as one of the oldest confidential privileges to promote full, frank
communication between attorneys and clients, the attorney-client privilege is
codified in R.C. 2317.02(A), and for those cases not covered by the statute, by
common law. Id. at ¶ 16-17. The attorney-client privilege is held by the client, is
waivable, and is subject to several recognized exceptions. Id. at ¶ 16-54.
{¶ 43} Squire also traced the origin of the work-product doctrine. Id. at
¶ 54. The United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 508,
67 S. Ct. 385, 91 L. Ed. 451 (1947) explained that the work-product doctrine is a
qualified privilege that protects the mental processes of the attorney. In Ohio, it is
partially codified in Civ.R. 26. Squire at ¶ 54-55, 58.
{¶ 44} To further distinguish between the attorney-client privilege and the
work-product privilege, the court opinion focuses on the source of the protection.
The attorney-client privilege was recognized at “common law” and is protected by
R.C. 2317.02(A), while the attorney work-product privilege is not protected by
common law or statute, but rather by Civ.R. 26, according to the court opinion.
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Court opinion at ¶ 17. From this distinction, the court opinion creates a new rule
and distinguishes Chen—specifically, that a discovery order that is alleged to
breach attorney-client privilege automatically satisfies R.C. 2505.02(B)(4)(b) and
is a final, appealable order, but that the work-product doctrine, which does not
“involve common law, constitutional, or statutory guarantees of confidentiality
* * * may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere
statement that the matter is privileged.” Court opinion at ¶ 2. This declaration
however, demonstrates that the court opinion has no understanding of the
development of the work-product doctrine, the constitutional underpinnings of
Ohio’s work-product doctrine, or the nuances of Civ.R. 26.
III. Common-Law Development of Work-Product Doctrine
{¶ 45} “Common law” is [t]he body of law derived from judicial decisions,
rather than from statutes or constitutions.” Black’s at 334.
A. English Common Law
{¶ 46} While a treatise could be written on the development of the work-
product doctrine in England, it is sufficient to begin with the United States Supreme
Court’s recognition in Hickman that “English courts have developed the concept of
privilege to include all documents prepared by or for counsel with a view to
litigation.” 329 U.S. at 510, 67 S. Ct. 385, 91 L. Ed. 451, fn. 9.
{¶ 47} English common law developed “seven grounds” of privilege on
which a production request could be denied. Odgers & Harwood, Principles of
Pleading and Practice in Civil Actions in the High Court of Justice 262 (12th
Ed.1939). One was “documents prepared with a view to litigation”—that is,
documents “called into existence with the purpose—but not necessarily the sole
purpose—of assisting the deponent or his legal advisers in any actual or anticipated
litigation.” Id. at 264.
{¶ 48} For example, in the British case Birmingham & Midland Motor
Omnibus Co. v. London & N.W. Ry Co., 3 K.B. 850, 856 (1913), the appellate court
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upheld the trial court’s denial of the plaintiff’s discovery request of documents that
had been prepared in anticipation of litigation. Id. at 856. See also Adam Steamship
Co., Ltd. v. London Assur. Corp., 3 K.B. 1256 (1914).
{¶ 49} Additionally, in denying a motion for the production of documents,
namely a report of an accountant and draft of pleadings, Vice-Chancellor Sir W.
Page Wood held that when a solicitor employs a person to “assist him and to give
his opinion, such communications are as much privileged as if they came from the
solicitor himself.” Walsham v. Stainton, 2 H. & M. 357, 358 (1863). See also
Goldstone v. Williams, Deacon & Co., 1 Ch.D. 47 (1899).
{¶ 50} In another case involving denying an application for inspection of
documents that contained information that plaintiffs obtained “with a view to
consulting their professional adviser,” Cockburn, C.J. stated that maintaining the
confidences between a client and solicitor are “essential to the interests of justice
and the well-being of society.” Southwark & Vauxhall Water Co. v. Quick, 3
Q.B.D. 315, 317-318 (1878). See also Ankin v. London & N.E. Ry. Co., 1 K.B. 527
(1930).
B. Ohio Common Law
{¶ 51} Like the English pleading system, Ohio established a statutory
pleading system. Ohio Legislative Service Commission, Problems of Judicial
Administration 48 (Feb.1965). In conjunction, procedural rights to obtain
discovery and remedies to secure it were developed. Woodle, Discovery Practice
in Ohio—Pathway to Progress, 8 Case W.Res.L.Rev. 117, 119-120 (1957).
However, confronting Ohio lawyers was “[t]he common law [which] generally
allowed litigant parties to conceal from each other, up to the time of trial, the
evidence on which they meant to rely, and would not compel either of them to
supply * * *.” Id. at 120, quoting Reynolds v. Burgess Sulphite Fiber Co., 71 N.H.
332, 334, 51 A. 1075 (1902). And the historical basis for discovery proceedings in
Ohio was judicial pronouncements. Id. at 121.
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{¶ 52} While statutes required parties to “produce” evidence, this court was
carving out exceptions. See Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276 (1906),
overruled in part on other grounds by Ex parte Martin, 141 Ohio St. 87, 47 N.E.2d
388 (1943), paragraph four of the syllabus. In reversing judgments of the trial and
circuit courts that held a witness in contempt for refusing to answer deposition
questions and produce documents pursuant to a statute, this court declared:
The statement of the witness that the reports were made in
anticipation of possible litigation and that they are in
possession of counsel for use in the suit which did ensue
stands uncontradicted, and must, therefore, be taken as true.
This clearly brings the documents within the rule as to
privilege; and we see no reason to limit or modify the rule
because the defendant is a corporation and obtained its
information and made its memoranda for the purposes
stated, through the usual agencies of a corporation.
(Emphasis added.) Id. at 15-16.
IV. Enactment of the Federal Rules of Civil Procedure
{¶ 53} The United States Supreme Court promulgated the Federal Rules of
Civil Procedure in 1938. Subrin, Fishing Expeditions Allowed: The Historical
Background of the 1938 Federal Discovery Rules, 39 B.C.L.Rev. 691 (1998), fn.
4. The Rules merged law and equity proceedings and simplified the pleading
practice, thereby expanding the need and role of discovery. Anderson, Cadieux,
Hays, Hingerty, & Kaplan, The Work Product Doctrine, 68 Cornell L.Rev. 760,
766-767 (1983). Fed.R.Civ.P. 26 created a “pre-trial deposition-discovery
mechanism” requiring the disclosure of “any relevant matter which is not
privileged.” Hickman, 329 U.S. 495, 500 and 507, 67 S. Ct. 385, 91 L. Ed. 451.
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January Term, 2016
V. Hickman v. Taylor: Federal Common-Law Work-Product Doctrine
{¶ 54} After the implementation of the Federal Rules of Civil Procedure, “a
great divergence of views among the district courts” emerged regarding the
protection of the work product of the lawyer. Id. at 500. As characterized by the
court, the facts of Hickman presented the problem of “the extent to which a party
may inquire into oral and written statements of witnesses, or other information,
secured by an adverse party’s counsel in the course of preparation for possible
litigation after a claim has arisen.” Id. at 497.
{¶ 55} In Hickman, a tug boat owned by Taylor sank, killing five of the nine
crew members, on February 7, 1943. 329 U.S. at 498. To defend against a possible
suit, the tug owner and underwriter hired a lawyer, who “privately interviewed the
survivors and took statements from them with an eye toward the anticipated
litigation” and interviewed others. Id. He reduced some of those interviews to
memoranda. Id.
{¶ 56} Hickman, a representative of a deceased crewmember, brought suit
and submitted interrogatories to the tug owners. In addition, he sought copies of
statements of any interviews. Id. at 498-499. Counsel for the tug owners asserted
privilege over the statements of survivors because they had been “ ‘obtained in
preparation for litigation,’ ” and seeking them constituted an attempt to “ ‘obtain
indirectly counsel’s private files.’ ” Id. at 498.
{¶ 57} The trial court held that the matters were not privileged and ordered
them disclosed. Id. at 500. The court of appeals reversed, holding “that the
information here sought was part of the ‘work product of the lawyer’ and hence
privileged from discovery under the Federal Rules of Civil Procedure.” Id. The
United States Supreme Court granted certiorari and affirmed. Id.
{¶ 58} While recognizing that the “deposition-discovery rules are to be
accorded a broad and liberal treatment” and are to permit “either party [to] compel
the other to disgorge whatever facts he has in his possession,” the procedure
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nevertheless has “ultimate and necessary boundaries.” Hickman, 329 U.S. at 507,
67 S. Ct. 385, 91 L. Ed. 451.
{¶ 59} In rejecting the holding of the district court, the court held:
In our opinion, neither Rule 26 nor any other rule dealing
with discovery contemplates production under such circumstances.
That is not because the subject matter is privileged or irrelevant, as
those concepts are used in these rules. Here is simply an attempt,
without purported necessity or justification, to secure written
statements, private memoranda and personal recollections prepared
or formed by an adverse party’s counsel in the course of his legal
duties. As such, it falls outside the arena of discovery and
contravenes the public policy underlying the orderly prosecution
and defenses of legal claims. Not even the most liberal discovery
theories can justify unwarranted inquiries into the files and the
mental impressions of an attorney.
(Emphasis added.) Id. at 509-510.
{¶ 60} “That was 1947; the work-product doctrine was case law.” Cohn,
The Work-Product Doctrine: Protection, Not Privilege, 71 Geo.L.J. 917, 920
(1983). This doctrine acknowledging the existence of the federal attorney-work-
product privilege would last for 23 years. During that time, district courts
“struggled to put flesh on the doctrine,” and decisions were inconsistent. Id.
{¶ 61} In 1953, the Advisory Committee proposed changes to the Federal
Rules of Civil Procedure to “clarify the effect of Hickman.” Anderson, 68 Cornell
L.Rev. at 782. However, the amendments regarding Hickman were rejected. Id. at
783. Extensive amendments to the Rules resulted in a new Fed.R.Civ.P. 26(B)(3)
in 1970, which codified Hickman, but not completely. Id. at 783.
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VII. Promulgation of the Ohio Rules of Civil Procedure
{¶ 62} The simplification of civil litigation was achieved with the
promulgation of the Ohio Rules of Civil Procedure. The genesis of the Rules was
the 1968 passage of Issue 3, after approval by the General Assembly, which resulted
in the Modern Courts Amendment’s becoming part of the Ohio Constitution.
Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio
Constitution, 29 Ohio St.L.J. 811 (1968), citing 1967 Am.Sub.H.J.Res.No. 42; see
also Article IV, Section 5(B), Ohio Constitution.
{¶ 63} One aspect of the amendment was a recognition that the “keystone
to the reform of judicial procedure was the conferring of rule-making power on the
courts.” Corrigan, A Look at the Ohio Rules of Civil Procedure, 43 Ohio St.Bar
Assn. Rep. 727, 728 (1970). See also Havel v. Villa St. Joseph, 131 Ohio St. 3d
235, 2012-Ohio-552, 963 N.E.2d 1270, ¶ 2 (Modern Courts Amendment conferred
authority on this court “to promulgate rules relating to matters of procedure in
courts of Ohio”). The amendment empowered this court—not the General
Assembly—with rulemaking authority. Id. “The power vested in the Court is
complete,” Corrigan at 728, because the “[p]rocedural rules promulgated pursuant
to the Modern Courts Amendment supersede conflicting statutes that affect
procedural matters.” Havel, at ¶ 2.
{¶ 64} Thereafter, the Supreme Court of Ohio directed the Rules Advisory
Committee to propose the Ohio Rules of Civil Procedure for its consideration,
recommending that the Federal Rules of Civil Procedure be the general model.
Corrigan at 728. Modeling Ohio’s Rules on the Federal Rules was a “distinct
advantage,” as there was “a considerable body of decisions” interpreting and
applying the Federal Rules, and some states had adopted similar rules. Id. at 729.
{¶ 65} The Rules promulgated by the court, effective July 1, 1970, unified
and simplified the discovery practice that previously “had been based on a
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conglomerate of statutes, case law and custom. 1970 Staff Notes 1, Civ.R. 26. A
review of Civ. R. 26 as promulgated in 1970 reveals these roots.
VIII. Civ.R. 26 as Promulgated in 1970
{¶ 66} Both the original and current Civ.R. 26(A) (in which a reference to
electronically stored information has been added—otherwise the versions are the
same) set forth the policy of the rules:
(A) Policy; discovery methods. It is the policy of these rules
(1) to preserve the right of attorneys to prepare cases for trial with
that degree of privacy necessary to encourage them to prepare their
cases thoroughly and to investigate not only the favorable but the
unfavorable aspects of such cases and (2) to prevent an attorney
from taking undue advantage of an adversary's industry or efforts.
{¶ 67} This language was not contained within the Federal Rules, but was
a statement of Ohio policy for interpreting the discovery rules. 1970 Staff Notes 2,
Civ.R. 26. It was taken almost verbatim from the California Code of Civil
Procedure. See Knepper, Ohio Civil Practice, Section 6.05, at 122 (1975). The
California legislature added this language “to correct unduly liberal rulings of the
California courts invading the work product of attorneys.” Id. Knepper opined that
the provision is supportive of Justice Robert Jackson’s concurring opinion in
Hickman, 329 U.S. at 514-519, 67 S. Ct. 385, 91 L. Ed. 451, “which emphasized the
necessity of preserving the independence of the lawyer and the adversary system.”
Knepper at 122, fn. 60.
{¶ 68} Except for reference to electronically stored material, the language
of Civ.R. 26(B)(1) and (3) is the same today as when promulgated in 1970. Civ.R.
23(B)(1) provides the scope of discovery and adopts the liberal philosophy of the
Federal Rules. However, Civ.R. 26(B)(3) reveals that while liberal, discovery is
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not an entitlement. Civ.R. 26(B)(3) carves out a conditional exception for
privileged materials—“documents and tangible things prepared in anticipation of
litigation or for trial” by or for the adverse party or party’s representative, including
counsel. As discussed above, the recognition of these materials as falling within the
definition of privileged materials and therefore excluded from discovery unless
good cause is demonstrated finds its roots in case law. See In re Hyde, 149 Ohio
St. 407, 79 N.E.2d 224 (1948), paragraph one of the syllabus (reports concerning
accident involving company vehicle are privileged when made in course of business
and turned over to company’s legal counsel); In re Keough, 151 Ohio St. 307, 85
N.E.2d 550 (1949), paragraph two of the syllabus (same). Moreover, while
liberalizing the discovery practice, Civ. R. 26(B)(3) “does not destroy the privacy
of the attorney’s mental impressions or the concept that each side should prepare
its case independently. It does not allow the lazy lawyer to automatically have the
fruits of the work of the diligent lawyer.” 1970 Staff Note 3(c), Civ.R. 26(B)(1).
XI. Shortcomings of the Court Position
{¶ 69} The court opinion’s analysis fails to perceive the larger picture. It
does not recognize that the protection provided by the work-product doctrine
originated in English, federal, and Ohio common law. Accordingly, under the court
opinion’s reasoning, a discovery order alleging a breach of this protection would
not require a showing under R.C. 2505.02(B)(4)(b) beyond the trial court’s
statement that the matter is privileged. Court opinion at ¶ 2.
{¶ 70} Moreover, the court opinion does not appreciate that the work-
product doctrine provides protection outside the scope of Civ.R. 26(B)(3) (trial
preparation-materials):
While the protections for attorney work product provided in
Civ.R. 26(B)(3) expressly apply to “documents, electronically
stored information and tangible things prepared in anticipation of
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litigation,” protection also extends to intangible work product.
Hickman, 329 U.S. at 511, 67 S. Ct. 385, 91 L. Ed. 451; In re Cendant
Corp. Securities Litigation (C.A.3, 2003), 343 F.3d 658, 662; United
States v. One Tract of Real Property (C.A.6, 1996), 95 F.3d 422,
428, fn. 10; 8 Wright, Miller, Kane & Marcus, Federal Practice and
Procedure (3d Ed.2009), Section 2024. The protection for
intangible work product exists because “[o]therwise, attorneys’ files
would be protected from discovery, but attorneys themselves would
have no work product objection to depositions.” In re Seagate
Technology, L.L.C. (C.A.Fed., 2007), 497 F.3d 1360, 1376.
Squire, 127 Ohio St. 3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 58. Resolution
of this category of work-product doctrine disputes is by common law. So again,
under the court opinion’s reasoning, an order arising from this situation would
qualify as a discovery order that would need only the statement that the matter is
privileged to meet the final-appealable-order requirement of R.C.
2505.02(B)(4)(b). Court opinion at ¶ 2.
{¶ 71} The court opinion is also diminishing the significance of our
procedural rules, which draw their authority from the Ohio Constitution. As set
forth above, Article IV, Section 5(B) was added to the Ohio Constitution pursuant
to the 1968 Modern Courts Amendment and conferred upon this court the authority
to promulgate rules of procedure. Havel, 131 Ohio St. 3d 235, 2012-Ohio-552, 963
N.E.2d 1270, ¶ 2. The procedural rules are controlling unless the General Assembly
enacts a conflicting law affecting a substantive right. See Morris v. Morris, __ Ohio
St.3d __, 2016-Ohio-5002, __ N.E.2d __, ¶ 43. Moreover, procedural rules
“supersede conflicting statues that affect procedural matters.” Havel at ¶ 2.
Additionally, under the court opinion’s reasoning, a discovery order alleging a
breach of the work-product protection would not require a showing under R.C.
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January Term, 2016
2505.02(B)(4)(b) beyond the mere statement that the matter is privileged, as the
authority for the promulgation of Civ.R. 26 is the Ohio Constitution. Court opinion
at ¶ 19.
{¶ 72} The short shrift with which the court opinion treats the work-product
privilege, an interrelated and vital aspect of the administration of justice in the
protection of the attorney and client relationship, is alarming. As Hickman states:
Historically, a lawyer is an officer of the court and is bound
to work for the advancement of justice while faithfully protecting
the rightful interests of his clients. In performing his various duties,
however, it is essential that a lawyer work with a certain degree of
privacy, free from unnecessary intrusion by opposing parties and
their counsel. Proper preparation of a client’s case demands that he
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. That is the historical and
the necessary way in which lawyers act within the framework of our
system of jurisprudence to promote justice and to protect their
clients’ interests. This work is reflected, or course, in interviews,
statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and
intangible ways—aptly though roughly termed * * * the “ ‘[w]ork
product of a 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
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profession would be demoralizing. And the interests of the clients
and the cause of justice would be poorly served.
We do not mean to say that all written materials obtained or
prepared by an adversary’s counsel with an eye toward litigation are
necessarily free from discovery in all cases. Where relevant and
non-privileged facts remain hidden in an attorney’s file and where
production of those facts is essential to the preparation of one’s case,
discovery may properly be had. * * * But the general policy against
invading the privacy of an attorney’s course of preparation is so well
recognized and so essential to an orderly working of our system of
legal procedure that a burden rests on the one who would invade that
privacy to establish adequate reasons to justify production through
a subpoena or court order.
329 U.S. at 510-512, 67 S. Ct. 385, 91 L. Ed. 451.
{¶ 73} With this decision, the court opinion systematically declares that a
document allegedly privileged under the work-product doctrine does not meet the
standard established in R.C. 2505.02(B)(4)(b) unless some special showing is
somehow made. Given that Civ.R. 26 provides protection to a broad class of
documents and materials, the release of privileged documents necessarily puts the
party protecting these materials into the category of those “not * * * afforded a
meaningful or effective remedy by an appeal following final judgment.” A released
document never regains privileged status. The “proverbial bell cannot be unrung.”
See Muncie, 91 Ohio St. 3d at 451, 746 N.E.2d 1092.
X. Smith v. Chen Should Be Overruled
{¶ 74} The diminution in status of the work-product privilege by the court
opinion will in my view cause irreparable harm. Moreover, this decision will not
settle the law that has now been upended. Limiting Chen as applying only to an
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January Term, 2016
asserted privilege for work-product materials and not to materials covered by
attorney-client privilege is without basis, and the folly of that exercise will been
seen in the litigation that is sure to follow. The only proper way to resolve the
problem that we have created is to apply Galatis, 100 Ohio St. 3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, paragraph one of the syllabus, to overrule Chen: “A prior
decision of the Supreme Court may be overruled where (1) the decision was
wrongly decided at that time, or changes in circumstances no longer justify
continued adherence to the decision, (2) the decision defies practical workability,
and (3) abandoning the precedent would not create an undue hardship for those who
have relied upon it.”
{¶ 75} First, Chen was wrongly decided. Without warning, Chen overruled
long-established precedent in every Ohio appellate district. Chen, 142 Ohio St. 3d
411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 14 (Kennedy, J., dissenting). Indeed,
the court opinion relies on precedent that also rejects the analysis and holding of
Chen. Court opinion at ¶ 20, citing Muncie, 91 Ohio St. 3d at 446, 746 N.E.2d 1092.
{¶ 76} Second, Chen has proven difficult to apply. Chen offers no guidance
as to what R.C. 2505.02(B)(4)(b) requires in order to render an appeal of an order
compelling disclosure of allegedly privileged material “truly * * * meaningless.”
(Emphasis sic.) Chen at ¶ 9. And this decision limiting Chen to claims of privilege
regarding material sought under the work-product doctrine does not offer any
enlightenment.
{¶ 77} Finally, since Chen was decided last year and has been inconsistently
applied by the lower courts, the number of cases seeking clarification from us
continues to grow. See, e.g., In re Grand Jury Proceedings of Doe, jurisdiction
accepted at __ Ohio St.3d __, 2016-Ohio-467, __ N.E.3d __; Mentor Way Real
Estate Partnership v. Hertanu, jurisdiction declined at __ Ohio St.3d __, 2016-
Ohio-5792, __ N.E.3d __; and Branche v. Motorists Mut. Ins. Co., jurisdiction
declined at __ Ohio St.3d __, 2016-Ohio-7877, __ N.E.3d __. Overruling Chen
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would return stability to the law. Consequently, Chen’s demise will not create an
undue hardship.
{¶ 78} As a result of the court opinion’s disparate treatment of privileged
documents, I predict three outcomes. First, Ohio lawyers will now have to gauge
the risk of creating and preparing documents and materials. Second, the cost of
protecting privileged materials will significantly increase as litigants expend large
sums to protect the work product of their attorneys. Third, this court will continue
to distinguish Chen “to the vanishing point, creating an illusion of certainty in the
law while leaving only a shadow of an ancient landmark.” United Gas
Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406, 85 S.Ed. 1517, 14
L.Ed.2 466 (Douglas, J., dissenting). However, “[a]s far as I am aware, the public
is not under the illusion that we are infallible. I see little harm in admitting that we
made a mistake * * *.” Dickerson v. United States, 530 U.S. 428, 464, 120 S. Ct.
2326, 147 L. Ed. 2d 405 (2000) (Scalia, J., dissenting).
{¶ 79} Because I would overrule Chen in accordance with Galatis, 100
Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, and restore the stability and
predictability to the law as it existed before Chen, I concur in judgment only.
O’DONNELL and FRENCH, JJ., concur in the foregoing opinion.
_________________
PFEIFER, J., dissenting.
{¶ 80} I dissent from elevating the incident report in this case to the exalted
status of being the product of attorney-client privilege, requiring the immediate
intervention of the appellate court to protect the Cleveland Clinic from what
exactly—the disclosure of its top-secret ratio of water to Mop & Glo? This was a
run-of-the-mill, wet-floor, slip-and-fall case that generated an automatically
produced report, a business record that involved in its production no interaction
between the client and its in-house or outside counsel; its purpose was to notify the
risk-management and law departments of an event that might result in legal action.
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January Term, 2016
{¶ 81} “Trial courts * * * have extensive jurisdiction over discovery,
including inherent authority to direct an in camera inspection of alleged privileged
materials * * *.” State ex rel. Abner v. Elliott, 85 Ohio St. 3d 11, 16, 706 N.E.2d
765 (1999). The trial court did its job here and found the report to not be privileged;
its decision can be reviewed on appeal in due course without doing damage to the
sanctity of the attorney-client privilege.
_________________
Obral, Silk & Associates, L.L.C., Alexander L. Pal, and Thomas J. Silk, for
appellee.
Bonezzi, Switzer, Polito & Hupp Co. L.P.A., Bret C. Perry, and Jason A.
Paskan, for appellants.
Reminger Co., L.P.A., and Martin T. Galvin, urging reversal for amicus
curiae Academy of Medicine of Cleveland & Northern Ohio.
Bricker & Eckler L.L.P, Anne Marie Sferra, and Kara Herrnstein, urging
reversal for amici curiae Ohio Hospital Association and Ohio State Medical
Association.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association for Justice.
_________________
31