Whitt v. Erb Lumber

{¶ 34} I respectfully dissent from the majority's decision.

{¶ 35} Civ.R. 16(B)(1) provides that "[p]arties may obtain discovery of any matter, not privileged . . ." Evid.R. 501 states: "The privilege of a witness, person, state, or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience."

{¶ 36} R.C. 2317.02 governs testimonial privileges. It includes those that existed at common law and several more. The section provides that "[t]he following persons shall not testify in certain respects." Paragraph (B)(1) identifies "[a] physician or a dentist concerning a communication made to him by his patient in that relation or his advice to his patient . . .", absent the patient's waiver of the privilege. The section operates to create a bar to physician testimony. Baker v.Industrial Commission of Ohio (1939), 135 Ohio St. 491.

{¶ 37} Defendant-Appellant ERB Lumber is obviously not a physician. Neither did it provide physician services to the persons whose injuries are reflected in the records that Plaintiff-Appellee Whitt seeks to discover and which the trial court ordered ERB to produce. Those persons might intervene to invoke the physician-patient privilege applicable to the records involved. However, ERB's status as holder of those records confers no right on ERB to invoke the physician-patient privilege as a bar to discovery.

{¶ 38} ERB seeks to avoid these distinctions by relying on a number of federal statutes and regulations that protect confidentiality of information. However, those prohibitions do not apply to revelations required by judicial order or decree. To hold that they do necessarily finds a federal preemption where no intention to do that is expressed or otherwise evident.

{¶ 39} ERB's privilege argument has a dual purpose. One is to fit its claim within the Civ.R. 16(B)(1) discovery exemption for privileged matter. The other is to invoke this court's jurisdiction to review provisional remedies, which includes orders requiring "discovery of privileged matter." R.C.2505.02(A)(3), (B)(4). That provision was added to R.C. 2505.02 by amendments which became effective in 1998. Cases that have since applied it have involved invocation or an attempted invocation of the privilege by the person or entity that by statute holds the privilege. See: Nester v. Lima MemorialHospital (2000), 139 Ohio App.3d 883; Neftzer v. Neftzer (2000), 140 Ohio App.3d 618; Boone v. Vanliner Insurance Co. (Dec. 2, 1999), Franklin App. No. 98AP-1535; National City Bankv. Ranier (Aug. 12, 1999), Franklin App. No. 98AP-1170; IndianaInsurance Co. v. Hardgrove (April 15, 1999), Franklin App. No. 98AP-910.

{¶ 40} By conferring a right on ERB to invoke a privilege it doesn't hold, the majority creates an unwarranted expansion of the privileged matter exception in Civ.R. 16(B)(1), ignoring the more limited definition of privileged matter in Evid.R. 501 and the narrower testimonial privilege provisions of R.C. 2317.02. Its effect, I fear, will be to encourage mischief in resisting discovery on similar grounds in other cases of this kind.