Stanton v. Univ. Hosps. Health Sys., Inc.

{¶ 26} Respectfully, I dissent and would reverse the trial court's judgment.

{¶ 27} Plaintiff-appellant, William R. Stanton, administrator of the estate of Margaret F. Stanton, appeals from the trial court's order denying the estate's motion for a protective order and ordering a nurse/paralegal who works for the estate's attorney to appear for deposition. The legal and practical effect of such a ruling is significant.

{¶ 28} On February 17, 2004, the estate initiated suit against defendants-appellees UHHS Bedford Medical Center, Ahava Health Care and Gemcare Holdings, seeking damages for wrongful death, violations of nursing-home resident's rights, and negligence relative to the death of Ms. Stanton. The complaint also sought damages for malice and disregard for the safety and well-being of Ms. Stanton.

{¶ 29} During the course of discovery, defendant-appellee UHHS Bedford Medical Center deposed the estate's experts, Cheryl Vajdik, R.N., and Stephen Aiello, M.D. Both nurse Vajdik and Dr. Aiello testified during their respective depositions that a paralegal/nurse, Barbara Roberts, who is employed by the estate's counsel, telephonically conferenced with them and then prepared drafts of proposed reports for their review. During their lengthy testimony, both nurse Vajdik and Dr. Aiello remained steadfast that after their review and changes, if any, they adopted in totality the reports as drafted by Roberts. The reports were provided, as required by law, during discovery.

{¶ 30} Counsel for appellees subsequently requested the deposition of Roberts. The estate refused to allow Roberts to be deposed and moved for a protective order. The trial court denied the motion for a protective order, ruling, "Defendant may depose Plaintiffs nurse paralegal only on the issue of how Plaintiffs expert reports were generated." The instant appeal followed.

{¶ 31} Civ.R. 26(C) governs protective orders and states, "[T]he 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[.]" Our standard of review of a trial court's ruling on a motion for a protective order is abuse of discretion.Arnold v. Am. Natl. Red Cross (1994),93 Ohio App.3d 564, 639 N.E.2d 484. An abuse of discretion connotes more than an error in judgment, but rather implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,5 OBR 481, 450 N.E.2d 1140.

{¶ 32} In its sole assignment of error, the estate contends that requiring Roberts to be deposed would intrude upon the work-product privilege of its counsel. Appellee UHHS Bedford Medical Center "agrees with the Stantons' contention that a paralegal working at the direction of a lawyer is entitled to the same work-product privilege as the lawyer[,]" but argues that "[t]he privilege, however, does not apply in this case." Moreover, UHHS Bedford Medical Center argues that the estate waived the work-product privilege.

{¶ 33} Appellees Ahava Health Care and Gemcare Holdings argue that conversations between the estate's counsel and the experts involving preparation of the reports do not implicate the work-product privilege. Ahava Health Care and Gemcare Holdings further contend that the bases of the reports must be explored because they may rely upon impermissible hearsay. They also argue that if work-product privilege is implicated, it was waived by the estate's exchange of the reports with opposing counsel during discovery.

{¶ 34} Appellees' arguments somehow seem to imply that the experts' reports themselves are evidence in this case. They are not. The experts' reports are discovery: they notify the opposing side of what the experts are going to say at deposition and/or trial. They are notice; nothing less, nothing more. The evidence is the experts' testimony. How the notice (i.e., the experts' reports) was prepared is irrelevant. What is relevant is the testimony itself.

{¶ 35} Initially, I would hold that the issue of how the experts' reports were generated implicates nothing but the work-product privilege. Civ.R. 26(B)(4), labeled "Trial preparation: experts," provides:

{¶ 36} "(a) Subject to the provisions of subdivision (B)(4)(b) of this rule and Rule 35(B), a party may discover facts known or opinions held by an expert retained or specially employed by another party in anticipation of litigation or preparation for trial only upon a showing that the party seeking discovery is unable without undue hardship to obtain facts and opinions on the same subject by other means or upon a showing of other exceptional circumstances indicating that denial of discovery would cause manifest injustice.

{¶ 37} "(b) As an alternative or in addition to obtaining discovery under subdivision (B)(4)(a) of this rule, a party by means of interrogatories may require any other party (i) to identify each person whom the other party expects to call as an expert witness at trial, and (ii) to state the subject matter on which the expert is expected to testify. Thereafter, any party may discover from the expert or the other party facts known or opinions held by the expert which are relevant to the stated subject matter. Discovery of the expert's opinions and the grounds therefore is restricted to those previously given to the other party or those to be given on direct examination at trial."

{¶ 38} Appellees Ahava Health Care and Gemcare Holdings argue that a distinction exists between Civ.R. 26(B)(4)(a) and (b). In particular, they argue that subsection (a) contains the work-product privilege and governs experts who are not going to testify at trial, while subsection (b) governs experts who are going to testify at trial and is not subject to the work-product doctrine. However, the very language of Civ.R. 26(B)(4)(b) provides that it applies "[a]s an alternative or in addition to obtaining discovery under subdivision (B)(4)(a) of this rule." Thus, subsections (a) and (b) of Civ.R. 26(B)(4) are not mutually exclusive.

{¶ 39} Counsel's argument, therefore, misses the key distinction between the reports themselves and the mental processes that went into creating the reports. Certainly, any party who intends to call an expert to testify on his or her behalf at trial must supply the expert's report to all the parties in the case. See Civ.R. 16 and Loc.R. 21.1. However, the mental processes that went into creating the reports are afforded special protection. To that end, Civ.R. 26(A)sets forth the general policy regarding discovery and provides:

{¶ 40} "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 his adversary's industry or efforts."

{¶ 41} Moreover, Roberts, as an agent of counsel, was afforded the same privilege as was counsel. The Supreme Court of Ohio has held that an attorney's nonlawyer employees work at the direction and discretion of the attorney.Community Mut. Ins. Co. v. Tracy (1995),73 Ohio St.3d 371, 374, 653 N.E.2d 220. Indeed, the court recognized that "`[delegation of work to nonlawyers is essential to the efficient operation of any law office.'" Id., quotingDisciplinary Counsel v. Ball (1993), 67 Ohio St.3d 401,404, 618 N.E.2d 159.

{¶ 42} Thus, Roberts, while working at the direction and discretion of the estate's counsel, was afforded the same privilege as counsel. To hold otherwise would negate the purpose of lawyers being able to delegate work to nonlawyers for the efficient operation of their practices.

{¶ 43} The majority cites RelianceIns. Co. v. Keybank U.S.A., Natl. Assn. (N.D.Ohio 2006),2006 WL 543129, a federal trial court discovery decision, in support of its position that appellees may depose the estate's attorney's agent as to how the expert reports in this case were prepared. That case bears little relationship to the case at bar. In Reliance, the matter before the court was Keybank's motion to compel production of notes constituting a draft of an expert report. No request was made whatsoever for the testimony of a lawyer involved in the case. In the case, there was an agreement between Keybank and one of the third-party defendants, Swiss Reinsurance, that they would exchange all drafts of their respective expert reports. Swiss Reinsurance claimed that the notes were not drafts because they were not shown to the expert. It further claimed that they were not work product. Reliance held that "the notes constituted a `draft' of the opinion," and hence pursuant to the agreement of the parties, must be turned over. Id. at. Further, it should be noted that the court applied the "work-product doctrine" under Fed.R.Civ.P. 26(b)(3). But this application must be analyzed in conjunction with Fed.R.Civ.P. 26(a)(2)(B), which provides, "Except as otherwise stipulated or directed by the court, this disclosure with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness." No such analogous language exists in the Ohio Rules of Civil Procedure.

{¶ 44} In short, Reliance involves the production of documents, not the deposition of counsel. It was decided in part upon an agreement of the parties that all drafts of expert reports would be exchanged and upon the court's finding that the notes were drafts. Finally, the court decided the work-product issue in favor of production under Fed.Civ.R. 26, which specifically requires that the expert prepare his own report; no such requirement is in the analogous Ohio rule. Reliance is wholly inapplicable to the case at bar.

{¶ 45} That said, the issues in this case are: 1) whether appellees met their burden in requesting Roberts's deposition; 2) whether the fact that Roberts participated in the drafting of the proposed experts' reports somehow removes work-product privilege; 3) whether the estate waived the privilege by providing the reports during discovery; and 4) whether, despite the privilege, Roberts's deposition should be allowed in order to inquire about possible impermissible hearsay.

{¶ 46} As to the first issue, whether appellees met their burden, I would hold that the burden needed to order Roberts to submit to deposition has not been satisfied.

{¶ 47} As already mentioned, Civ.R. 26(B)(4) provides that "a party may discover facts known or opinions held by an expert * * * only upon a showing that the party seeking discovery is unable without undue hardship to obtain facts and opinions on the same subject by other means or upon a showing of other exceptional circumstances indicating that denial of discovery would cause manifest injustice."

{¶ 48} Appellees contend that they sought to depose Roberts solely to establish bias and challenge the credibility of the expert witnesses. Neither of those reasons rises to the required undue hardship or exceptional circumstance under Civ.R. 26(B)(4). Indeed, appellees had ample opportunity (and seized it) to attempt to establish bias and challenge the credibility of the experts during each of their respective depositions. To that end, appellees' counsel questioned each of the experts extensively about the fact that Roberts had prepared drafts of their reports, and the experts did not deny that fact. Thus, there are not "inconsistencies regarding the ultimate creation of the expert reports," as the majority holds.

{¶ 49} Moreover, appellees questioned the experts as to whether their testimony was "tainted" by conversations with counsel or counsel's agent. Whether that questioning itself is permissible under work-product doctrine is not at issue here. But deposing counsel or counsel's agent cannot advance that inquiry. Only the experts themselves are competent to testify upon that issue.

{¶ 50} In regard to the second issue, the privilege remains regardless of the fact that Roberts participated in the drafting of proposed reports. Appellee UHHS Bedford Medical Center argues that work-product privilege "does not apply when a party uses the witness statement to create an expert report and then claims the report is the work of the expert." This argument is unpersuasive. The argument misses the critical point that both experts adopted the reportsdrafted by Roberts. The issue is not whether the report itself is work product — it is not; the report itself is clearly discoverable. The issue is whether the communication between counsel and the experts revolving around the preparation of the reports was work product; and, in fact, it is.

{¶ 51} Relating to the third issue, whether the estate waived the privilege, I would hold that providing the reports during discovery, as required by law, does not constitute a waiver of the work-product privilege.

{¶ 52} As already mentioned, Civ.R. 16 and C.P.Loc.R. 21.1 require that an opposing party be provided with the report of an expert who will testify at trial. Although the majority does not hold that the fact that the estate provided opposing counsel with the experts' reports constitutes a waiver of the work-product privilege, the majority states, "The testifying experts and the bases of their opinions must be disclosed in compliance with both Civ.R. 26(C) and Loc.R. 21.1." The testifying experts and the bases of their opinionshave been disclosed. Again, the fact that the experts adopted the reports is of critical importance. The reports, as adopted by the experts, contained the bases of their opinions. Counsel for appellees could, and did, cross-examine the experts about those bases.

{¶ 53} The fourth issue, whether Roberts should be subject to deposition to inquire about the possibility of impermissible hearsay, is also meritless. Ahava Health Care and Gemcare Holdings argue that inquiry about this possible hearsay is required because "the expert witnesses are basing the terminology and phraseology of their expert opinions upon information provided by Paralegal Barbara Roberts." The majority holds that it cannot find any "indicia that this is so commonplace as to negate the need to depose Ms. Roberts on this single issue." Lawyers providing the terminology for experts, however, is precisely how experts reach certain conclusions. It is not generally, for example, in doctors' vernacular to state that "to a reasonable degree of medical certainty," a certain result came about. Rather, lawyers introduce such phrases and standards and question experts as to whether the phrases and/or standards are applicable to the case.

{¶ 54} Similarly, in other areas of discovery, it is the lawyer who usually provides the phraseology and/or standards for the parties. Parties generally do not write stipulations or respond to interrogatories or requests for admissions; their attorneys do, in consultation with the parties. The parties may confirm, modify, or deny that which has been prepared, but they are generally not the sole preparers of the work. That is exactly what occurred during discovery in this case; after consultation with the witnesses, Roberts drafted proposed reports that both experts ultimately adopted and upon which both experts were subject to cross-examination as to preparation and content. Thus, the experts did in fact "author" the reports.

{¶ 55} In sum, in a situation such as the instant one in which an agent for an attorney prepared the experts' draft reports after interviewing the experts, the reports were subsequently adopted by the experts, and the experts were deposed at length as to the contents of the reports, the agent must not be subject to a "limited deposition" as to his or her mental processes.¹ Holding otherwise does not reflect the law. Roberts, the agent, is protected by the work-product privilege; appellees have not overcome their burden to get at Roberts's work product, and the work-product privilege was not removed or waived.

{¶ 56} In addition to the majority's holding not comporting with the law, the practical effect of the majority's holding could be disastrous. In particular, such holding will open the door to attorneys, paralegals, secretaries, law clerks, and any other agent of an attorney who is working under the direction and discretion of the attorney to be subject to deposition, based solely upon their participation in preparing discovery. In fact, by subpoenaing any one of these persons, opposing counsel would force them to withdraw pursuant to Ohio Disciplinary Rule DR 5-102. No power is likely to be more misused than the power to de facto remove an opponent's counsel from a litigation.

{¶ 57} I fear the tactics that likely will arise from the trial court's ruling, even in its limited fashion. Moreover, I fear that such a ruling will not only open the door to such tactics in regard to the preparation of expert reports, but also in regard to the preparation of stipulations and responses to interrogatories and admissions.

{¶ 58} The majority in this case analyzes the issue of the propriety of deposing counsel for the estate as though the expert report at issue were evidence in the case and there is a conspiracy between counsel and the expert to manufacture evidence or create misleading evidence for the jury. It cannot be overempha-sized that the expert report at issue here is not evidence; it is discovery. The testimony of the expert is the evidence, and no one has even suggested that the witnesses may not be deposed on the sources and bases of their opinions. The request of the defense to depose the estate's counsel is a thinly veiled attempt to disqualify counsel, and the natural and probable consequence of the holding of the majority is the legal right to depose lawyers on their participation in the preparation of any and all discovery responses.

{¶ 59} Therefore, I would reverse the trial court's order and grant a protective order as to the proposed deposition of the estate's attorney's paralegal.

¹ Experience teaches that a "limited deposition" is an oxymoron. A "limited deposition" in practice is just a regular deposition replete with objections and phone calls to the court seeking immediate rulings as to those "limits."