In re Special Grand Jury Investigation

[Cite as In re Special Grand Jury Investigation, 2018-Ohio-760.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re : No. 17AP-446
(C.P.C. No. 16 CM 41)
Special Grand Jury Investigation : (REGULAR CALENDAR)
D E C I S I O N
Rendered on March 1, 2018
On brief: Webster & Associates Co., LPA, Geoffrey E.
Webster, and Bryan M. Pritikin; Kegler Brown Hill & Ritter,
and Jonathan E. Coughlan, for appellants. Argued:
Geoffrey E. Webster; Jonathan E. Coughlan.
On brief: Michael DeWine, Attorney General, and
Anthony J. Molnar, for appellee. Argued: Anthony J.
Molnar.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Appellants, a rehabilitation and nursing center ("rehabilitation center") and
its parent organization,1 appeal an entry of the Franklin County Court of Common Pleas
ordering production of documents alleged by appellants to be protected under the work-
product doctrine. Because appellants have not argued or affirmatively established that an
immediate appeal is necessary in order to afford a meaningful and effective remedy under
R.C. 2505.02(B)(4)(b), we dismiss the appeal for lack of a final, appealable order pursuant
to Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480.
1The documents in this case are filed under seal, and we accordingly refrain from identifying appellants by
name. In re Grand Jury Proceeding of Doe, 150 Ohio St.3d 398, 2016-Ohio-8001, fn. 2.
No. 17AP-446 2
I. CASE BACKGROUND
{¶ 2} In 2016, during the course of grand jury proceedings, appellee issued a
subpoena to appellants requesting internal investigation documentation related to a self-
reported incidence ("SRI") report submitted by appellants to the Ohio Department of
Health in 2014. Appellants refused to produce certain internal investigation
documentation related to the SRI on the grounds that the requested documents were
protected under the "work-product privilege" and provided a corresponding privilege log
based on a claimed work-product privilege. Appellee filed a motion for a show cause
order as to why appellants should not be held in contempt for failing to comply with the
subpoenas. Appellants opposed the show cause motion arguing the documents
underlying the SRI investigation at issue are not legally required as a part of internal
investigations, are not required to be turned over to the state under any law, are instead
work product prepared in anticipation of litigation, and are not required to be disclosed
for good cause.
{¶ 3} On May 12, 2017, the trial court found the documents sought by appellee are
not work product. Therefore, the trial court ordered appellants to provide the requested
documents to appellee before a certain date as appellee had failed to show cause why it
should not be held in contempt. Enforcement of the order to produce the documents is
stayed pending appeal.
{¶ 4} Appellants filed a timely appeal to this court, presenting two assignments of
error:
[1.] THE TRIAL COURT ERRED IN FINDING APPELLANTS'
COUNSEL'S INTERNAL INVESTIGATION WAS NOT
PROTECTED, PRIVILEGED WORK PRODUCT.
[2.] THE TRIAL COURT ERRED BY FINDING THE STATE
WAS ENTITLED TO SECURE APPELLANTS COUNSEL'S
DOCUMENTS THROUGH SUBPOENA.
{¶ 5} In its appeal, appellants request this court find that documentation
supporting appellants' investigation is protected by the "work-product privilege" and that
appellee has not shown good cause to compel production of those documents before the
grand jury. (Appellants' Brief at 37.) Appellants did not address in their briefs or at oral
No. 17AP-446 3
argument why the trial court's order is final and appealable or specifically why an
immediate appeal is necessary in order to afford them a meaningful and effective remedy.
In its appellate brief, appellee "concedes" that the order is appealable pursuant to Doe at
paragraph two of the syllabus. (Appellee's Brief at 4.)
II. DISCUSSION
{¶ 6} An appellate court's jurisdiction is limited to the review of final, appealable
orders, judgments, or decrees, and, therefore, we are obligated to raise sua sponte
questions related to our jurisdiction. State ex rel. Ohio Academy of Nursing Homes, Inc.
v. Ohio Dept. of Medicaid, 10th Dist. No. 16AP-102, 2016-Ohio-1516, ¶ 4-5, citing R.C.
2505.03(A) and State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113
Ohio St.3d 410, 2007-Ohio-2205, ¶ 44; Brown v. ManorCare Health Servs., 9th Dist. No.
27412, 2015-Ohio-857, ¶ 7. If a judgment is not a final, appealable order, then an
appellate court has no jurisdiction to review the matter, and it must be dismissed. State v.
Boschulte, 10th Dist. No. 02AP-1053, 2003-Ohio-1276, ¶ 4.
{¶ 7} "Generally, trial court orders addressing discovery issues are merely
interlocutory and not immediately appealable." Bowers v. Craven, 9th Dist. No. 25717,
2012-Ohio-332, ¶ 14. However, an order compelling discovery of information alleged to
be privileged or protected may be final and appealable if certain requirements of R.C.
2505.02 are met. Ohio Academy of Nursing Homes at ¶ 4-6; Summit Park Apts., LLC v.
Great Lakes Reinsurance (UK), PLC, 10th Dist. No. 15AP-820, 2016-Ohio-1514, ¶ 9-11.
{¶ 8} Pursuant to R.C. 2505.02(B), in pertinent part, an order is final and
appealable where that order:
(4) [G]rants or denies a provisional remedy and to which 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.
No. 17AP-446 4
{¶ 9} The Supreme Court in Doe recently addressed the appealability of orders
compelling production of documents in the context of grand jury proceedings. Regarding
the first requirement under R.C. 2505.02(B)(4), the court in Doe found that an order for a
party to testify or produce documents in a grand jury proceeding is an order granting or
denying a "provisional remedy" within the meaning of R.C. 2505.02. Doe at paragraph
one of the syllabus. The court further held that under the second requirement, "[a]ny
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." Id. at
¶ 21, citing Burnham v. Cleveland Clinic, __ Ohio St.3d __, 2016-Ohio-8000, ¶ 21.
{¶ 10} Regarding the last requirement set forth in R.C. 2505.02(B)(4)(b), the Doe
court found that "[w]hen a party is compelled to produce material protected by the
attorney-client privilege, harm extends beyond the actual case being litigated and causes
the loss of a right that cannot be rectified by a later appeal." Id. at ¶ 22. Thus, "[a]n order
enforcing a grand jury subpoena and ordering the production of allegedly privileged
information is a final order pursuant to R.C. 2505.02(B)(4)." Id. at paragraph two of the
syllabus. The court specifically limited this holding to information alleged to be protected
by attorney-client privilege; the court declined to address whether R.C. 2505.02(B)(4)(b)
is satisfied with regard to information alleged to be protected by the attorney work-
product doctrine.2 Id. at ¶ 22, fn. 3.
{¶ 11} Additional Supreme Court of Ohio precedent recently cited by this court
states that under the last requirement set forth in R.C. 2505.02(B)(4)(b), a party
attempting to appeal an order compelling discovery of privileged materials must
affirmatively establish that an immediate appeal is necessary to afford the appellant a
meaningful and effective remedy. Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-
8330, ¶ 19, citing Chen at ¶ 8 (finding an order to produce documents alleged to be
2 The Doe court notes that in Burnham at ¶ 16, it had distinguished the protection provided by the attorney
work-product doctrine from the protection provided by the attorney-client privilege in the context of final,
appealable orders. Burnham is a split decision. While six justices agreed that an order to produce materials
alleged to be protected by the attorney-client privilege is final and appealable under R.C. 2505.02(B), the
justices were split 3-3 on the issue of whether attorney-client privilege should be distinguished from work-
product protection for purposes of determining whether an order is final and appealable. As there was no
majority on that issue, Chen stands as valid precedent.
No. 17AP-446 5
protected under the work-product doctrine was not final and appealable where the
appellants never argued or established they would not be afforded an effective or
meaningful remedy through appeal after final judgment under R.C. 2505.02(B)(4)(b) and
failed to address that requirement adequately again in a show cause order issued by the
Supreme Court).3 See, e.g., Summit Park Apts. at ¶ 11 (finding the trial court order at
issue was final and appealable by distinguishing its own facts from Chen because the
appellants effectively argued, both in its primary brief and reply, that it would be denied a
meaningful remedy if not permitted to appeal because the privilege is lost once the
documents are exposed to opposing counsel); Third Fed. S. & L. Assn. of Cleveland v.
Callahan, 1st Dist. No. C-140443 (Nov. 23, 2016) (finding it was without jurisdiction
under Chen where the appellant failed to argue, both before the trial court and in the
appeal, that it would not be afforded a meaningful and effective remedy absent an
immediate appeal); Walker v. Taco Bell, 1st Dist. No. C-150182, 2016-Ohio-124, ¶ 8
(dismissing the appeal for lack of jurisdiction where the appellant failed to establish why
an immediate appeal of the trial court's order is necessary under Chen); Leipply v.
Diamond Cut Lawn & Landscaping Serv. LLC, 7th Dist. No. 16 CO 0004, 2016-Ohio-
4748, ¶ 8 (dismissing appeal for lack of a final, appealable order because the appellant's
"traditional 'the proverbial bell cannot be unrung' argument," without more, was
insufficient under Chen to demonstrate why the appellant cannot wait until the
underlying lawsuit has been resolved to appeal the trial court's discovery order); Howell
v. Park E. Care & Rehab., 8th Dist. No. 102111, 2015-Ohio-2403, ¶ 11 (discussing Chen
and dismissing appeal where the appellant did not make any attempt to establish the
necessity of an immediate appeal to satisfy the requirements of R.C. 2505.02(B)(4)(b)).
{¶ 12} Here, although appellants use the phrase "work-product privilege," the only
ground appellants asserted to avoid production of the requested documents is the work-
product doctrine; appellants make no allegation that the attorney-client privilege applies,
and in oral argument repeatedly stated they were not asserting attorney-client privilege.
As a result, we disagree with appellee that Doe is dispositive on the issue of whether the
trial court order is final and appealable to invoke our jurisdiction, as that case specifically
3We note that the justices in Burnham were also split 3-3 on the issue of whether Chen should be limited to
cases alleging work-product protection or overruled in its entirety.
No. 17AP-446 6
refrained from applying its holding to cases alleging protection under the work-product
doctrine.
{¶ 13} Furthermore, unlike in Summit Park Apts., appellants in this case have not
addressed, either in their appellate briefs or at oral argument, whether an immediate
appeal is necessary in order to afford a meaningful and effective remedy in this case. As a
result, we find appellants have not affirmatively established that an immediate appeal is
necessary pursuant to R.C. 2505.02(B)(4)(b) under Chen. We, therefore, "presume an
appeal in the ordinary course would be meaningful and effective" and find the trial court
order at issue is not final and appealable on the facts of this case. Id. at ¶ 8. Without a
final, appealable order, we lack jurisdiction over this matter. Boschulte at ¶ 4.
{¶ 14} We note that the dissent primarily takes issue with dismissing the case
without first ordering supplemental briefing.4 The dissent has not set forth authority
showing supplemental briefing is required in this or any instance. Undoubtedly, there are
instances where a court would benefit from additional briefing on a particular issue.
Whether or not supplement briefing is warranted is a question within the discretion of the
appellate court. App.R. 16(C).
{¶ 15} Here, appellants have not made any attempt to establish the necessity of an
immediate appeal under R.C. 2505.02(B)(4)(b) despite recent Supreme Court cases
discussing this issue. Chen currently remains precedent and has been followed by
appellate courts to support dismissal where the appellant failed to argue that it would
afford a meaningful and effective remedy pursuant to R.C. 2505.02(B)(4)(b). See, e.g.,
Callahan; Howell. Accordingly, we find dismissal is warranted without supplemental
briefing in this case.
{¶ 16} For the above stated reasons, and on the authority of Chen and its prodigy,
this appeal is dismissed.
4The dissent takes further issue with our distinguishing between attorney-client privilege and work product,
a distinction raised by the Supreme Court in Burnham and noted in Doe at ¶ 22, fn. 3 ("In Burnham, we
distinguished the protection provided by the attorney-work-product doctrine from the protection provided
by the attorney-client privilege."). Since appellants have failed to affirmatively establish that an immediate
appeal is necessary in this case under Chen, we need not address this issue at this time and make no
comment on the propriety of this distinction.
No. 17AP-446 7
III. CONCLUSION
{¶ 17} Having found we lack jurisdiction over this matter due to the lack of a final,
appealable order, we dismiss this appeal.
Appeal dismissed.
TYACK, J., concurs.
LUPER SCHUSTER, J., dissents.
LUPER SCHUSTER, J., dissenting.
{¶ 18} Because I would not sua sponte dismiss for lack of a final appealable order
without, at a minimum, ordering supplemental briefing, I respectfully dissent.
{¶ 19} The majority relies on the Supreme Court of Ohio's decision in Smith v.
Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, for the proposition that an order compelling
the production of documents alleged to be privileged work product is not a final
appealable order where the appealing party does not affirmatively establish that an
immediate appeal is necessary pursuant to R.C. 2505.02(B)(4)(b). However, before
dismissing for lack of a final appealable order in Chen, the Supreme Court first ordered
the parties to show cause why the appeal should not be dismissed for lack of jurisdiction
pursuant to R.C. 2505.02. Chen at ¶ 6. Thus, it was only after the parties failed to
articulate why they would not be afforded a meaningful or effective remedy by an appeal
following final judgment, when specifically prompted, that the Supreme Court found no
final appealable order.
{¶ 20} The specific factual and procedural posture is vital to Chen and to the cases
that purport to follow it. As this court noted in Summit Park Apts., LLC v. Great Lakes
Reinsurance (UK), PLC, 10th Dist. No. 15AP-820, 2016-Ohio-1514, also cited by the
majority, to the extent the Supreme Court intended to impose an affirmative burden to
establish that an immediate appeal is necessary in an order compelling the production of
allegedly privileged work product, such an affirmative burden is highly fact-specific. Id. at
¶ 11 (noting that, in Chen, "factually, the party seeking to defend privilege and work
product on appeal in [Chen] failed to show cause when ordered to do so on whether there
was a final appealable order"). It follows, then, that the requirement of the affirmative
burden should not be used as a basis for dismissal without first giving the party the
opportunity to meet that burden. Additionally, we noted in Summit Park Apts. that the
No. 17AP-446 8
appellant in that case agued in its briefing that it would be denied a meaningful remedy if
it could not immediately appeal and, thus, declined to find no final appealable order
pursuant to Chen. Summit Park Apts. at ¶ 11.
{¶ 21} Critically here, unlike in Summit Park Apts., this court sua sponte raised the
issue of a potential lack of a final appealable order. Therefore, at a minimum, I would not
decide this issue without giving the parties the opportunity to weigh in through
supplemental briefing. See Id. at ¶ 11 (noting that, through briefing, the appealing party
was able to affirmatively demonstrate than an immediate appeal was necessary). See also
Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-8330, ¶ 12 (noting it was appellee's
argument that the order was not final and appealable, meaning the parties had the
opportunity to address the issue through briefing). To the extent this court is going to
interpret Chen to impose an affirmative burden in work-product privilege cases, I would
not impose such a burden without giving the parties an opportunity to be on notice of the
issue. See, e.g., State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, ¶ 4 (the Supreme
Court requested supplemental briefing from the parties on the issue of jurisdiction, an
issue not previously raised in the proceedings).
{¶ 22} Moreover, the majority specifically declines to apply Supreme Court cases
pertaining to attorney-client privilege on the grounds that this case involves solely a
question of work-product privilege and not of attorney-client privilege. I would not find
the issue to be so neatly contained. Though they are indeed two distinct concepts, the
work-product privilege emanates from, and is interrelated with, attorney-client privilege.
See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161,
2010-Ohio-4469, ¶ 55 (explaining "the work-product doctrine provides a qualified
privilege protecting the attorney's mental processes in preparation of litigation");
Burnham v. Cleveland Clinic, __ Ohio St.3d __, 2016-Ohio-8000, at ¶ 31-79 (Kennedy,
J., plurality). Thus, many of the same concepts applying to the disclosure of attorney-
client privilege, most notably the notion that "the proverbial bell cannot be unrung," apply
equally to an analysis of the final nature of an order compelling the production of work-
product privilege as it would to an order compelling the production of materials deemed
to be attorney-client privilege. Summit Park Apts. at ¶ 11 (internal quotations omitted).
This court has recognized, post-Chen, the interrelated nature of claims of attorney-client
No. 17AP-446 9
privilege and work-product privilege. Summit Park Apts. at ¶ 11 (analyzing in a common
analysis, without distinction, whether an order compelling the disclosure of potentially
privileged matter was a final appealable order).
{¶ 23} For these reasons, I respectfully dissent.
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