Coon v. OhioHealth Corp.

[Cite as Coon v. OhioHealth Corp., 2023-Ohio-492.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
RICHARD COON, ADMINISTRATOR OF
THE ESTATE OF BIANCA COON, DECEASED,
PLAINTIFF-APPELLEE,
CASE NO. 9-22-41
v.
OHIOHEALTH CORP, ET AL.,
DEFENDANTS-APPELLANTS,
-and-
OPINION
VEERA CHANDRA SEKLAR
VEERLA, M.D., ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Marion County Common Pleas Court
Trial Court No. 2020 CV 379
Judgment Affirmed
Date of Decision: February 21, 2023
APPEARANCES:
Michael R. Traven for Appellants
John A. Lancione, Paul W. Flowers and Melissa A. Ghrist for
Appellee, Bianca Coon Estate
Case No. 9-22-41
ZIMMERMAN, J.
{¶1} Defendants-appellants, OhioHealth Corporation (“OhioHealth”) and
Marion General Hospital (collectively, “defendants”), appeal the judgment of the
Marion County Court of Common Pleas denying their motion for a protective order
under Civ.R. 26(C). For the reasons that follow, we affirm.
{¶2} This case stems from the December 27, 2019 death of Bianca Coon
(“Bianca”) following her outpatient surgery by the defendants (and the other parties
named in plaintiff-appellee’s complaints). Importantly, this case involves the
discovery of records pertaining to OhioHealth’s—a not-for-profit healthcare system
in Central Ohio—policies and procedures and medical-staff bylaws as they existed
in 2019.
{¶3} On December 3, 2020, plaintiff-appellee, Richard Coon (“Richard”),
administrator of the estate of Bianca, filed a complaint in the trial court alleging
claims for wrongful death and survivorship against the defendants, along with
Marion Area Physicians, LLC (“Marion Physicians”) and Rebecca Crockett, D.O
(“Dr. Crockett”). On December 28, 2020, the defendants, Marion Physicians, and
Dr. Crockett filed their answer.
{¶4} On April 5, 2021, Richard filed an amended complaint against the
defendants, Marion Physicians, and Dr. Crockett as well as including additional
defendants: Aditi S. Girme, M.D. (“Dr. Girme”), Veera Chandra Seklar Veerla
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M.D. (“Dr. Veerla”), Shawn Thomas Cuevas, D.O. (“Dr. Cuevas”), and Chasidy R.
Crist, CNP (“Crist”). The defendants, Marion Physicians, Crist, and Drs. Crockett
and Cuevas filed their answer to Richard’s amended complaint on April 7 and Drs.
Girme and Veerla filed their answer to Richard’s amended complaint on May 25,
2021, respectively.
{¶5} On September 8, 2021, Richard filed a second amended complaint
against the defendants, Marion Physicians, Crist, and Drs. Crockett, Cuevas, Girme,
and Veerla, and naming as defendants: Access Medical Group, LLC (“Access
Medical”), Andrea Ciola, R.N. (“Ciola”), Wendy Tevis, R.N. (“Tevis”), Cassi
Babcock, R.N. (“Babcock”), and Marinah Edwards, PSA (“Edwards”). The
defendants, along with Marion Physicians, Drs. Crockett and Cuevas, Crist, Ciola,
Tevis, Babcock, and Edwards filed their answer to Richard’s second amended
complaint on September 13, 2021. Access Medical along with Drs. Girme and
Veerla filed their answer to Richard’s second amended complaint on September 17,
2021.
{¶6} On August 23, 2021, Richard filed a motion to compel discovery from
Drs. Girme and Veerla. Drs. Girme and Veerla filed a memorandum in opposition
to Richard’s motion to compel discovery on August 30, 2021.
{¶7} On September 1, 2021, Richard filed a motion to compel discovery
from the defendants and for sanctions. On September 24, 2021, the defendants filed
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a memorandum in opposition to Richard’s motion to compel discovery and for
sanctions along with a motion for a protective order under Civ.R. 26(C). The
defendants argued that the protective order is necessary to protect the documents
from disclosure because they are confidential and proprietary. That is, the
defendants claimed that “the documents at issue before the Court are confidential
commercial information” due to “the nature and extent of OhioHealth’s investment
(both monetarily and vis-à-vis human capital)” as well as due to “the harm to
OhioHealth if the disputed documents do not retain their confidentiality.” (Doc.
No. 36).
{¶8} As evidence in support of their protective order, the defendants
submitted the affidavit of Dr. Marian K. Schuda, M.D. (“Dr. Schuda”), the medical
director for patient services at Riverside Methodist Hospital and the system medical
director for risk management at OhioHealth. In the affidavit, Dr. Schuda averred
that she has “knowledge and information regarding” the disputed documents based
on her roles with Ohio Health and asserted that “OhioHealth considers the Disputed
Documents to be confidential and proprietary commercial information.” (Doc. No.
36, Ex. C). Specifically, Dr. Schuda averred that
[t]he information contained in the Disputed Documents outlines * * *
the method and manner that OhioHealth (a) provides some of its
medical care and treatment regarding certain medical conditions and
issues; (b) utilizes certain medical equipment and other
instrumentation; and (c) the organization structure and procedures of
hospital-based committees and other like groups. The Disputed
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Documents contain information related to the professionalism, quality
performance, and culture of OhioHealth, all of which is organic and
specific to OhioHealth.
(Id.). Moreover, Dr. Schuda averred that “[t]he Disputed Documents are not
publicly accessible”; “[a]ll OhioHealth staff as well as those credentialed with
OhioHealth (whether employed or not are required to sign [a] Confidentiality
Agreement”; OhioHealth “invested significant time, resources, human capital, and
money into the creation, maintenance, and aforementioned availability of the
Disputed Documents”; and “OhioHealth would suffer harm if the Disputed
Documents are not maintained in a confidential manner” because “healthcare is a
competitive industry.” (Id.).
{¶9} On September 27, 2021, Richard filed a second motion to compel
discovery from the defendants and for sanctions. On October 22, 2021, the
defendants filed a memorandum in opposition to Richard’s second motion to compel
discovery and for sanctions. The trial court set the matter for a hearing.
{¶10} Following a hearing on December 1, 2021 (regarding Richard’s
motion to compel discovery and the defendants’ motion for a protective order), the
trial court’s magistrate concluded that all of the requested documents (except for the
peer-review policy) are discoverable and denied the defendants’ request for a
protective order. (Doc. No. 56). Importantly, the trial court’s magistrate concluded
that the defendants failed to meet their burden of establishing that “a clearly defined
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and serious injury * * * will occur if [Richard] is given these polices without a
protective order.” (Id.). Further, the trial court’s magistrate denied Richard’s
request for sanctions.
{¶11} On January 11, 2022, the defendants filed a motion for an extension
of time to file objections to the magistrate’s decision due to an alleged service
failure. Nevertheless, the defendants filed a notice of appeal from the December
20, 2021 magistrate’s decision in this court on January 18, 2022. However, this
court dismissed the appeal for lack of a final and appealable order on March 9, 2022.
{¶12} Without being granted an extension of time, the defendants filed their
objections to the magistrate’s decision on March 17, 2022. Apparently recognizing
such oversight, the defendants filed a “renewed” motion for an extension of time to
file objections to the magistrate’s decision the next day. On March 24, 2022,
Richard filed a “motion to adopt magistrate’s decision and overrule defendants’
objections to magistrate’s decision.” (Doc. No. 69). On March 29, 2022, the
defendants filed a motion to strike Richard’s motion, arguing that Civ.R. 53 “does
not provide or permit the filing of a motion to ‘adopt’ a magistrate’s ruling.”
(Emphasis sic.) (Doc. No. 70). That same day, the defendants filed their reply in
support of their objections to the magistrate’s decision.
{¶13} On April 22, 2022, the trial court censured the defendants for
obfuscating the Rules of Civil Procedure and its orders. Critically, the trial court
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noted that the defendants have “a growing pattern of disregard for the Courts and
their rulings” and detailed such delay tactics. (Doc. No. 73). Nevertheless, the trial
court, determined “to further develop the record” for this court, ordered its
magistrate to reconsider “the attorney fee issue” and “to re-evaluate the record for
the Decision.” (Id.).
{¶14} Consequently, on May 2, 2022, the trial court’s magistrate issued a
decision reconsidering the December 20, 2021 magistrate’s decision, yet reached
the same result. Specifically, the magistrate reviewed the disputed documents along
with the evidence presented by the parties in their motions as well as the December
1, 2021 hearing. Based on the arguments presented by the defendants, the trial
court’s magistrate thoroughly analyzed the evidence against Ohio’s trade-secrets
law to determine if the defendants met their burden of proving that the documents
in dispute constitute “a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a designated way”
as provided under Civ.R. 26(C)(7). Ultimately, the trial court’s magistrate
concluded that the defendants failed to demonstrate “a clearly defined and serious
injury [that] will occur if [Richard] is given these policies without a protective
order.” (Doc. No. 74).
{¶15} On May 12, 2022, the defendants filed their objections to the
magistrate’s decision. Notwithstanding the arguments presented in their motion for
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a protective order, the defendants objected to the magistrate’s application of Ohio’s
trade-secrets analysis to reach the conclusion that they did not meet their burden of
proving that the documents in dispute constitute “a trade secret or other confidential
research, development, or commercial information not be disclosed or be disclosed
only in a designated way” as provided under Civ.R. 26(C)(7). Even though the
defendants argued that Ohio’s trade-secrets analysis is inapplicable to their
argument, they nevertheless objected to the weight that the magistrate applied to the
trade-secrets factors.
{¶16} On July 8, 2022, the trial court issued its entry addressing the
defendants’ objections to the magistrate’s decision in which it affirmed the
magistrate’s decision. (Doc. No. 83). Specifically, the trial court rejected the
defendants’ argument that the magistrate “should not have applied trade secret law.”
(Id.). Furthermore, the trial court announced that it was “not convinced the factors
have the weight in favor of the protective order stated by OhioHealth” and agreed
with the magistrate’s analysis. (Id.).
{¶17} On July 12, 2022, Richard voluntarily dismissed his complaint against
Dr. Cuevas without prejudice under Civ.R. 41(A)(1)(a).
{¶18} The defendants’ filed their notice of appeal on July 26, 2022. They
raise one assignment of error for our review.
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Assignment of Error
The Trial Court Erred in Denying OhioHealth’s Motion for
Protective Order, Because OhioHealth’s Policies and Procedures
Are Confidential and Proprietary [Judgment Entry, filed July 8,
2022].
{¶19} In their assignment of error, the defendants argue that the trial court
abused its discretion by adopting the magistrate’s decision denying their motion for
a protective order under Civ.R. 26(C). Specifically, the defendants argue that the
trial court erroneously applied the trade-secrets analysis to deny their motion for a
protective order. Instead, the defendants contend that the trial court should have
carved a new analysis to apply to parties seeking a protective order for “confidential
business information” under Civ.R. 26(C)(7). (Appellant’s Brief at 10).
{¶20} Notwithstanding their argument in favor of a new standard, the
defendants contend that there is not some competent, credible evidence supporting
the trial court’s decision that the documents in dispute did not constitute “a trade
secret or other confidential research, development, or commercial information
[which should] be disclosed only in a designated way” under Civ.R. 26(C)(7). In
other words, the defendants contend that there is not some competent, credible
evidence supporting the trial court’s trade-secrets analysis.
Standard of Review
{¶21} “Generally, ‘[a]n appellate court reviews the trial court’s decision to
adopt, reject or modify the Magistrate’s decision under an abuse of discretion
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standard.’” Costilla v. Weimerskirch, 3d Dist. Hancock No. 5-20-12, 2021-Ohio-
165, ¶ 8, quoting Tewalt v. Peacock, 3d Dist. Shelby No. 17-10-18, 2011-Ohio-
1726, ¶ 31. An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶22} “‘“When reviewing a trial court’s disposition of objections to a
magistrate’s report,”’ an appellate court “‘will not reverse the trial court’s decision
if it is supported by some competent, credible evidence.”’” Davidson v. Hatcher,
3d Dist. Allen No. 1-22-21, 2022-Ohio-4452, ¶ 29, quoting McNeilan v. The Ohio
Univ. Med. Ctr., 10th Dist. Franklin No. 10AP-472, 2011-Ohio-678, ¶ 20, quoting
O’Connor v. O’Connor, 10th Dist. Franklin No. 07AP-248, 2008-Ohio-2276, ¶ 16.
“‘“If there is some competent, credible evidence in the record to support the trial
court’s decision, there is generally no basis for a reviewing court to find an abuse of
discretion.”’” Id. at ¶ 28, quoting Depinet v. Norville, 3d Dist. Wyandot No. 16-19-
04, 2020-Ohio-3843, ¶ 11, quoting In re Medure, 7th Dist. Columbiana No. 01 CO
3, 2002-Ohio-5035, ¶ 13.
{¶23} However, when reviewing a party’s objections to a magistrate’s
decision, “[t]he trial court may adopt, reject, or modify the magistrate’s decision.”
Sheehan v. Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 11, citing
Civ.R. 53(D)(4)(b). Significantly, when reviewing those objections, “the trial court
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is ‘not required to follow or accept the findings or recommendations of its
magistrate.’” Id., quoting Stumpff v. Harris, 2d Dist. Montgomery No. 21407, 2006-
Ohio-4796, ¶ 16. “Instead, the trial court ‘shall undertake an independent review as
to the objected matters to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law.’” Id., quoting Civ.R. 53(D)(4)(d),
and citing Stumpff at ¶ 16. “Accordingly, the trial court reviews the magistrate’s
decision under a de novo standard of review,” which is “‘independent and without
deference to the trial court’s determination.’” Id., citing Stumpff at ¶ 16; Canter v.
Garvin, 3d Dist. Union No. 14-19-30, 2021-Ohio-99, ¶ 22, quoting ISHA, Inc. v.
Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
Analysis
{¶24} “The Rules of Civil Procedure provide liberal discovery provisions.”
Lima Mem. Hosp. v. Almudallal, 3d Dist. Allen No. 1-16-05, 2016-Ohio-5177, ¶ 55.
Under Civ.R. 26(B)(1), the scope of discovery includes
any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
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“Notwithstanding this wide scope of permissible discovery, trial courts are given
broad discretion in the management of discovery.” Almudallal at ¶ 55, citing State
ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 57 (1973).
{¶25} “Civ.R. 26(C) governs protective orders in Ohio.” Id. at ¶ 56. The
rule provides,
Upon motion by any party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is
pending may make any order that justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense, including one or more of the following: (1) that the
discovery not be had; (2) that the discovery may be had only on
specified terms and conditions, including a designation of the time or
place or the allocation of expenses; (3) that the discovery may be had
only by a method of discovery other than that selected by the party
seeking discovery; (4) that certain matters not be inquired into or that
the scope of the discovery be limited to certain matters; (5) that
discovery be conducted with no one present except persons designated
by the court; (6) that a deposition after being sealed be opened only
by order of the court; (7) that a trade secret or other confidential
research, development, or commercial information not be disclosed or
be disclosed only in a designated way; (8) that the parties
simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
Civ.R. 26(C). Importantly, “‘a motion for a protective order pursuant to Civ.R.
26(C) [is] * * * an exercise by the court of the discretion vested in it by Civ.R.
26(C).’” Squiric v. Surgical Hosp. at Southwoods, 7th Dist. Mahoning No. 20 MA
0015, 2020-Ohio-7026, ¶ 69, quoting Ruwe v. Board of Twp. Trustees of Springfield
Twp., 29 Ohio St.3d 59, 61 (1987). See also Randall v. Cantwell Mach. Co., 10th
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Dist. Franklin No. 12AP-786, 2013-Ohio-2744, ¶ 11 (“We review a trial court’s
denial of a protective order under an abuse-of-discretion standard.”).
{¶26} “Where the party resisting discovery alleges the requested information
is confidential or proprietary: ‘Courts apply a balancing test in determining whether
to grant protective orders, weighing the competing interests to be served by allowing
discovery to proceed against the harm that may result.’” Squiric at ¶ 70, quoting
Eberhard Architects LLC v. Schottenstein, Zox & Dunn Co., 8th Dist. Cuyahoga No.
99867, 2013-Ohio-5319, ¶ 13. See also Almudallal at ¶ 56 (“‘In determining
whether to grant a protective order, a trial court must balance the competing interests
to be served by allowing the discovery to proceed against any harm which may
result.’”), quoting Montrose Ford, Inc. v. Starn, 147 Ohio App.3d 256, 259 (9th
Dist.2002).
{¶27} In the May 2, 2022 decision, the trial court’s magistrate denied the
defendants’ motion for a protective order after concluding that they failed to meet
their burden of proving that the documents in dispute are either confidential or
proprietary and that they would suffer a clearly defined and serious injury resulting
from the documents’ disclosure. Specifically, the trial court’s magistrate found that
(1) “most of the information is gathered from public, national sources, and
associations which any hospital could obtain”; (2) “the policies are known within
the OhioHealth System, but their employees are subject to non-disclosure
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agreements”; (3) even though the defendants “testified to security measures in their
systems and non-disclosure agreements with employees,” “[c]ontrary evidence was
[presented that] OhioHealth has given over similar policies in other cases without
protective orders”; (4) because “[t]hese are also older policies, and would not be the
current version of OhioHealth’s policies even now, so the value of outdated policies
is even less”; (5) “[a]lthough it was stated money and time was spent, it was not
shown that there would be any significant loss or harm by denying the protective
order” due to the age of the policies; and (6) “OhioHealth did not have a good
answer to the additional time and expense it would take for other hospitals to acquire
and duplicate the information.” (Doc. No. 74).
{¶28} Significantly, the trial court’s magistrate did not find Dr. Schuda’s
affidavit or her testimony at the December 1, 2021 hearing to be credible. In
particular, the trial court’s magistrate highlighted that Dr. Schuda averred in her
affidavit to have “personal knowledge of the ‘disputed documents,’ while her in
person testimony was that she had no personal knowledge of the documents that
were in dispute in this case.” (Id.).
{¶29} In its July 8, 2022 decision overruling the defendants’ objections to
the magistrate’s decision, the trial court rejected the defendants’ plea for it to carve
out a new, and less cumbersome standard, which the defendants argued should be
applicable to a category of documents they titled “confidential business
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information.” Furthermore, the trial court concluded that the magistrate
appropriately applied the trade-secrets analysis based on the facts and arguments
available in the record. Specifically, the trial court addressed that “OhioHealth
believes the [trade-secrets] factors merit a different weight”; however, the trial court
was “not convinced the factors have the weight in favor of the protective order stated
by OhioHealth” and agreed “with the weight given by the Magistrate * * * .” (Doc.
No. 83).
{¶30} The defendants begin by arguing that the trial court abused its
discretion by denying its motion for a protective order under Civ.R. 26(C) because
it should not have analyzed whether the documents in dispute constitute trade
secrets under Ohio’s Uniform Trade Secrets Act (“UTSA”). That is, the defendants
wish to categorize the documents in dispute as “confidential business information,”
which they argue should be granted protection when “good cause” is shown.
(Appellant’s Brief at 10). In sum, the defendants argue that “[t]he trial court’s error
in this case is prejudicial, because the trade secret standard is more stringent—has
several additional factors—than the good cause standard.” (Id. at 11). In other
words, the defendants urge this court to adopt an “any articulable reason” model to
satisfy the good-cause standard.
{¶31} That is not the standard. See Squiric 2020-Ohio-7026, ¶ 82 (noting
that “Civ.R. 26(C)(7) applies to a trade secret; this same subdivision also applies to
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‘other confidential * * * commercial information’”), quoting Civ.R. 26(C)(7).
“‘“The burden of establishing good cause for a protective order rests with the
movant.”’” Almudallal, 2016-Ohio-5177, at ¶ 57, quoting Stout v. Remetronix, Inc.,
298 F.R.D. 531, 534 (S.D.Ohio 2014), quoting Nix v. Sword, 11 Fed.Appx. 498, 500
(6th Cir.2001). See also Hance v. Cleveland Clinic, 8th Dist. Cuyahoga No.
110129, 2021-Ohio-1493, ¶ 29 (“‘In a discovery dispute, those asserting that the
materials sought constitute trade secrets that are privileged from discovery bear the
burden of establishing trade secret status.’”), quoting Arnos v. MedCorp, Inc., 6th
Dist. Lucas No. L-09-1248, 2010-Ohio-1883, ¶ 20. Importantly, “‘[t]o demonstrate
good cause, the movant “must articulate specific facts showing [a] clearly defined
and serious injury resulting from the discovery sought and cannot rely on mere
conclusory statements.”’” Almudallal at ¶ 57, quoting Stout at 534, quoting Nix at
500.
{¶32} “Merely claiming the information is confidential is insufficient to
sustain the burden.” Eberhard Architects, 2013-Ohio-5319, at ¶ 14. Critically, “the
producing party must state the harm it will suffer with ‘sufficient particularity,’
which requires ‘“specific demonstrations of fact, supported where possible by
affidavits and concrete examples.”’” Almudallal at ¶ 57, quoting Stout at 535,
quoting Penn, LLC v. Prosper Business Dev. Corp., S.D.Ohio No. 2:10-cv-0993,
2012 WL 5948363, *4 (Nov. 28, 2012).
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{¶33} In many instances, Ohio’s courts of appeal apply Ohio’s UTSA to
determine whether information is confidential or proprietary and may be shielded
from disclosure under Civ.R. 26(C)(7). See Hance at ¶ 24; Squiric at ¶ 56. See also
Arnos at ¶ 27. Ohio’s UTSA, which is codified under R.C. Chapter 1333, “‘forbids
the unauthorized disclosure or acquisition of trade secrets by providing specific civil
remedies * * * .” Hance at ¶ 26, quoting State ex rel. Besser v. Ohio State Univ.,
87 Ohio St.3d 535, 539 (2000).
{¶34} A trade secrets includes “any information ‘including * * * any
business information or plans [and] financial information,’ which meets the”
statutory criteria under R.C. 1333.61(D)(1) and (2). Squiric at ¶ 73, quoting R.C.
1333.61(D). Those subsections require information to (1) derive “independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use” and (2) be “the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.” R.C. 1333.61(D)(1),
(2).
{¶35} The Supreme Court of Ohio established a six-factor test to consider
when analyzing a trade-secrets claim:
(1) The extent to which the information is known outside the
business; (2) the extent to which it is known to those inside the
business, i.e., by the employees; (3) the precautions taken by the
holder of the trade secret to guard the secrecy of the information; (4)
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the savings effected and the value to the holder in having the
information as against competitors; (5) the amount of effort or money
expended in obtaining and developing the information; and (6) the
amount of time and expense it would take for others to acquire and
duplicate the information.
Hance at ¶ 28, quoting State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio
St.3d 513, 524-525(1997), superseded by statute on other grounds, Besser. When
analyzing the factors, “[n]o single factor is dispositive. Id. See also MNM & MAK
Enterprises, LLC v. HIIT Fit Club, LLC, 10th Dist. Franklin No. 18AP-980, 2019-
Ohio-4017, ¶ 25 (acknowledging that the “factors are meant to assist courts and
factfinders in their analysis of whether something is a ‘trade secret’”).
{¶36} “‘Conclusory statements as to trade secret factors without supporting
factual evidence are insufficient to meet the burden of establishing trade secret
status.’” Hance at ¶ 29, quoting Arnos, 2010-Ohio-1883, at ¶ 28. That is, “‘“[t]he
mere presence of ‘trade secrets’ does not automatically entitle the producing party
to [a] protective order. The burden remains on the producing party to show that the
* * * protection is warranted.”’” Almudallal, 2016-Ohio-5177, at ¶ 57, quoting
Stout at 534-535, quoting Penn, 2012 WL 5948363, at *4. Importantly, “the party
claiming to possess a trade secret must demonstrate that it has taken ‘some active
steps to maintain its secrecy in order to enjoy presumptive trade secret status.’”
Hance at ¶ 29, quoting Arnos at ¶ 26.
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{¶37} “‘Whether information constitutes a trade secret is a question of fact.’”
Hance at ¶ 25, quoting In re Alternative Energy Rider Contained in the Tariffs of
Ohio Edison Co., 153 Ohio St.3d 289, 2018-Ohio-229, ¶ 35. Consequently, courts
of appeal review a trial court’s trade-secrets determination for an abuse of
discretion. Id. See also Squiric, 2020-Ohio-7026, at ¶ 62 (noting that a trial court’s
trade secrets decision is subject to an abuse of discretion review”).
{¶38} We conclude that the trial court did not abuse its discretion by adopting
the magistrate’s decision denying the defendants’ motion for a protective order
under Civ.R. 26(C). Based on our review of the record, there is some competent,
credible evidence that the documents in dispute are neither confidential nor
proprietary. Indeed, there is some competent, credible evidence in the record
supporting the conclusion that the defendants failed to meet their burden of
establishing good cause for their requested protective order.
{¶39} As evidence in support of their protective order, the defendants relied
on Dr. Schuda’s affidavit as well as her testimony at the December 1, 2021 hearing.
However, the evidence presented by the defendants failed to meet their burden of
proving a clearly defined and serious injury that would result from the disclosure of
the documents in dispute. Accord Almudallal, 2016-Ohio-5177, at ¶ 61 (“Where St.
Rita’s argument fails is that the affidavits fail to establish a specific showing of
harm.”). That is, Dr. Schuda’s affidavit offers only conclusory statements without
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any supporting evidence and her affidavit is belied by her testimony at the
evidentiary hearing. See Hance, 2021-Ohio-1493, at ¶ 32 (noting that “[t]he Clinic’s
argument and Dr. Mroz’s affidavit consist of merely conclusory statements that
mimic the trade secret factors without including any supporting evidence or
demonstration of active steps the Clinic has taken to preserve the information’s
secrecy”); Arnos, 2010-Ohio-1883, at ¶ 28; Ro-Mai Industries v. Manning
Properties, 11th Dist. Portage No. 2009-P-0006, 2010-Ohio-2290, ¶ 28.
{¶40} In her affidavit, Dr. Schuda averred that “OhioHealth would suffer
harm if the Disputed Documents are not maintained in a confidential manner”
because “healthcare is a competitive industry.” (Doc. No. 36, Ex. C). However,
Dr. Schuda’s affidavit fails to identify the clearly defined and serious injury that
would result from disclosing the documents in dispute in this case. See Almudallal
at ¶ 62 (concluding that “Lehman’s affidavit also lacks specificity” because
“Lehman failed to show a specific harm that would result from St. Rita’s disclosing
the information to Lima Memorial”). Imperatively, at the December 1, 2021
hearing, Dr. Schuda could not articulate a single injury that the defendants would
incur by producing the documents in dispute without a protective order. (See Dec.
1, 2021 Tr. at 91).
{¶41} Moreover, notwithstanding Dr. Schuda’s conclusory averments to the
contrary in her affidavit, there is some competent, credible evidence in the record
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that the defendants failed to meet their burden of establishing good cause for a
protective order. That is, the defendants failed to offer evidence supporting their
claim that the information is confidential and proprietary and failed to demonstrate
any active steps that they have taken to preserve the information’s secrecy. See
Hance at ¶ 32. Indeed, Dr. Schuda testified that OhioHealth’s code of conduct and
ethics and compliance program are publicly available on its website. Even though
it is not disputed that the current versions of the documents in dispute are maintained
on an internal, password-protected database, evidence was presented that the
information is not only available to employees of the defendants but that (prior
versions of) the documents have been disclosed in similar cases without protective
orders. Furthermore, contrary to her claim in her affidavit, Dr. Schuda testified that
“the nurses in the * * * units taking care of patients” do not “sign confidentiality
agreements specifically with respect to their nursing policies and procedures.”
(Dec. 1, 2021 Tr. at 95).
{¶42} In sum, based on the inconsistencies between her testimony and her
affidavit, the trial court’s magistrate concluded that Dr. Schuda was not credible.
Decisively, Dr. Schuda testified that she did not review the specific documents at
issue in this case despite claiming personal knowledge of them in her affidavit.
{¶43} Consequently, we conclude that there is some competent, credible
evidence in the record that the defendants failed to meet their burden of establishing
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good cause for their requested protective order. That is, that there is some competent
credible evidence in the record that the defendants failed to identify the clearly
defined and serious injury that would result from disclosing the documents in
dispute in this case. Accordingly, the trial court did not abuse its discretion by
adopting the magistrate’s decision denying the defendants’ motion for a protective
order under Civ.R. 26(C).
{¶44} The defendants’ assignment of error is overruled.
{¶45} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and WILLAMOWSKI, J., concur.
/jlr
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