Smith v. Chen

O’Neill, J.

{¶ 1} This is an appeal from a judgment affirming a trial court’s order compelling discovery of attorney work product. For the reasons that follow, we vacate the judgment of the court of appeals because it lacked jurisdiction. Appellants did not establish that the trial court order compelling discovery was a final, appealable order, and neither this court nor the court of appeals has jurisdiction to consider the merits of an interlocutory order that is not final and appealable.

Facts and Procedural History

{¶ 2} Plaintiff-appellee, Henry Smith, sued defendants-appellants, Dr. Ying Chen, D.O., and his employer, OrthoNeuro, alleging that he suffers from spinal injuries resulting from their medical malpractice. During pretrial discovery, Smith became aware that defendants had created a surveillance video of him. Defendants refused to turn the video over to Smith, insisting that it was attorney work product that they intended to use only as impeachment evidence and it therefore was not discoverable. Smith requested the videotape, and after a series of discovery motions, the Franklin County Court of Common Pleas ordered defendants to produce it.

{¶ 3} Dr. Chen and OrthoNeuro appealed to the Tenth District Court of Appeals. The court of appeals reviewed the trial court’s order for an abuse of discretion and affirmed. On the issue whether the discovery order was final and appealable, the court of appeals held merely that the order was final and appealable because “the surveillance video was attorney work-product subject to discovery for good cause.” 2013-Ohio-4931, 2013 WL 5972391, ¶ 11. The court of appeals did not determine whether Dr. Chen and OrthoNeuro would have a meaningful and effective remedy through an appeal after a final judgment is entered.

{¶ 4} The case is before this court upon Dr. Chen and OrthoNeuro’s appeal from the court of appeals’ judgment.

Analysis

{¶ 5} At the outset, we do not agree with the court of appeals that the trial court’s order compelling discovery was final and appealable. A proceeding for “discovery of privileged matter” is a “provisional remedy” within the meaning of R.C. 2505.02(A)(3). An order granting or denying a provisional remedy is final and appealable only if it has the effect of “determining] the action with respect to the provisional remedy and preventing] a judgment in the action in favor of the appealing party with respect to the provisional remedy” and “[t]he 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.” R.C. 2505.02(B)(4). A plain reading of the statute shows that an order must meet the requirements in both subsections of the provisional-remedy section of the definition of final, appealable order in order to maintain an appeal like the one we consider today.

{¶ 6} The court of appeals correctly observed that the order in this case determined the discovery issue against appellants, Dr. Chen and OrthoNeuro, preventing a judgment in their favor as to that issue. This is not the entire analysis. 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 this matter should not be dismissed for lack of a final, appealable order. 141 Ohio St.3d 1461, 2015-0hio-370, 24 N.E.3d 1180.

{¶ 7} We therefore cannot reach the merits of this appeal. There is no indication that the requirement in R.C. 2505.02(B)(4)(b) has been met. Without a final, appealable order, the court of appeals lacked subject-matter jurisdiction over the appeal, CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10, and we therefore lack jurisdiction over the merits of the discovery order.

{¶ 8} The Ohio Constitution grants courts of appeals jurisdiction “to review and affirm, modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2). The legislature has enacted a law that specifies which orders are final. R.C. 2505.02. For an order granting discovery of privileged matter to be a final order, an appellant must affirmatively establish that an immediate appeal is necessary in order to afford a meaningful and effective remedy. R.C. 2505.02(B)(4)(b). This burden falls on the party who knocks on the courthouse doors asking for interlocutory relief. Rendering a judgment on the merits of this appeal would signal to litigants that if they are unhappy with discovery orders that might result in their losing their case, they can spend a few years appealing the matter all the way up to this court without proving a real need to do so. Dr. Chen and OrthoNeuro failed to establish why an immediate appeal is necessary here, and we must presume an appeal in the ordinary course would be meaningful and effective.

{¶ 9} 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.

Conclusion

{¶ 10} Without a final, appealable order, the court of appeals lacked subject-matter jurisdiction over this matter. Therefore, we vacate the judgment of the Tenth District Court of Appeals and remand the matter to the Franklin County Court of Common Pleas for enforcement of its order compelling discovery of the surveillance video at issue here and for further proceedings.

Judgment vacated and cause remanded.

O’Connor, C.J., and Pfeifer, Lanzinger, and O’Neill, JJ., concur. O’Donnell, Kennedy, and French, JJ., dissent.