2014 Ohio 4681
Ohio Ct. App.2014Background
- Fremont hired H.M.M. as general contractor for a raw water reservoir; Arcadis was project engineer; OFIC served as payment bond surety.
- Rock-floor issues required changing from clay-lined to geosynthetic-lined reservoir; AEG was contracted in May 2011 to install the liner; payment issues ensued.
- AEG sued H.M.M., OFIC, and Fremont; AEG asserted liens, a claim against the payment bond, and breach-related claims.
- H.M.M. and Fremont mediated in June 2012; a partial payment agreement was reached; H.M.M. agreed to complete the project per a memorandum.
- A Joint Prosecution Agreement later sponsored AEG’s claims against Fremont; H.M.M. controlled litigation and proceedings.
- In January 2013 Global Mediation, Fremont paid $6.75M to settle all claims; AEG claimed about $1M but received only $144,622.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the subpoenaed materials were protected by mediation privilege | AEG contends the materials are not privileged and should be produced. | H.M.M. and OFIC insist the documents are confidential mediation communications under R.C. 2710. | Abuse found; order must await in-camera review of documents. |
Key Cases Cited
- Csonka-Cherney v. Arcelormittal Cleveland, Inc., 2014-Ohio-836 (8th Dist. Cuyahoga No. 100128 (Ohio 2014)) (court should conduct in-camera inspection to separate privileged material)
- Ward v. Summa Health Sys., 128 Ohio St.3d 212 (2010-Ohio-6275) (privilege issues are reviewed de novo)
- Tracy v. Merrell Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147 (1991) (abuse of discretion for discovery rulings generally; privilege questions treated as legal questions)
- Covington v. MetroHealth Sys., 150 Ohio App.3d 558 (2002-Ohio-6629) (mediation privilege scope and discovery limitations)