Buckeye Corrugated, Inc. v. Cincinnati Ins. Co.
2013 Ohio 3508
Ohio Ct. App.2013Background
- In 2005 Roy Allen sued Buckeye Corrugated, Inc. (BCI); BCI filed related claims and the actions were consolidated. Some of Allen’s claims were covered by BCI’s insurer, The Cincinnati Insurance Company (CIC).
- CIC reserved rights and retained counsel to monitor/assess coverage; BCI retained its own defense counsel with CIC’s consent and kept CIC informed per the policy, including settlement discussions.
- BCI and Allen ultimately settled. In 2011 BCI sued CIC for breach of contract, bad faith, and declaratory relief regarding allocation of the settlement obligations.
- CIC moved to compel broad production of all documents/communications related to the Allen litigation (including materials BCI had not shared with CIC); BCI claimed attorney-client privilege and work-product protection.
- The trial court granted CIC’s motion and ordered production of all requested materials; BCI appealed.
Issues
| Issue | Plaintiff's Argument (BCI) | Defendant's Argument (CIC) | Held |
|---|---|---|---|
| Whether attorney-client privilege protected BCI’s communications and documents | Privileged communications and work-product between BCI and its counsel are protected and not subject to disclosure | CIC argued exceptions or waiver applied so privilege did not attach and production was proper | Court reversed trial court: none of the argued exceptions applied; privilege may attach — remanded to decide waiver and work-product issues |
| Whether joint-representation or common-interest exceptions defeat privilege | BCI: separate counsel (BCI and CIC retained different counsel); communications were per-policy reporting, not joint defense | CIC: asserted common interest/joint-defense justified disclosure | Court: no joint-representation; common-interest exception not applicable given separate counsel and reporting obligations rather than shared legal strategy |
| Whether lack-of-good-faith exception permits CIC to obtain BCI’s privileged materials | BCI: insured can assert insurer bad faith but that does not let insurer demand insured’s privileged materials | CIC: sought materials to rebut bad-faith claim | Court: lack-of-good-faith exception not a logical basis for CIC’s request; CIC can defend by showing what it knew when acting |
| Whether trial court should have performed in camera review and addressed alternative arguments | BCI: trial court erred by not conducting in camera review and by not ruling on CIC’s alternate theories; order was overly broad | CIC: trial court’s order to produce sought materials was appropriate | Court: these issues are premature given reversal on privilege exceptions; remanded for further proceedings including waiver/work-product analysis |
Key Cases Cited
- Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (explains statutory and common-law scope of attorney-client privilege and exceptions)
- Ward v. Summa Health Sys., 128 Ohio St.3d 212 (2010) (privilege questions reviewed de novo)
- Swidler & Berlin v. United States, 524 U.S. 399 (1998) (policy behind attorney-client privilege encourages frank communications)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects broad communications between corporate clients and counsel)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994) (describes lack-of-good-faith exception to privilege)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (2005) (addresses interplay of statute and common law on privilege)
- Reed v. Baxter, 134 F.3d 351 (6th Cir. 1998) (formulation of attorney-client privilege elements)
- American Motors Corp. v. Huffstutler, 61 Ohio St.3d 343 (1991) (privilege bars dissemination of information obtained in confidential relationship)
- Jackson v. Greger, 110 Ohio St.3d 488 (2006) (R.C. 2317.02(A) is exclusive statutory means for waiver of attorney-client privilege)
- In re Election of Nov. 6 1990 for Office of Atty. Gen. of Ohio, 57 Ohio St.3d 614 (1991) (distinguishes waiver of attorney-client privilege from work-product protection)