Burnham v. Cleveland Clinic
2017 Ohio 1277
| Ohio Ct. App. | 2017Background
- Burnham slipped and fell at Cleveland Clinic; she sued and served discovery seeking witness IDs, statements, and the Clinic’s Safety Event Reporting System (SERS) incident report.
- The Clinic objected, asserting attorney-client privilege, work-product, and peer-review/quality-assurance privileges; it produced employee names but not the SERS report or author identity.
- Burnham moved to compel; the trial court conducted an in camera review, concluded the SERS report was not privileged, and ordered production.
- The Clinic appealed; this court initially dismissed for lack of a final appealable order based on Smith v. Chen, but the Ohio Supreme Court reversed and remanded, holding orders compelling disclosure of materials allegedly covered by attorney-client privilege are final and appealable.
- On remand this court reviewed whether the SERS report was protected by attorney-client privilege and whether the trial court abused its discretion.
- The court distinguished prior authority (where the report was prepared by counsel/risk manager and contained no plaintiff statements) and affirmed the trial court: the Clinic failed to show the SERS report was prepared in anticipation of litigation or by counsel, so privilege was not established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order compelling production of documents alleged protected by attorney-client privilege is final and appealable | Not directly litigated by Burnham here; discovery sought and should be produced | Order is final/appealable because disclosure irreparably harms privilege (Ohio Supreme Court precedent) | Ohio Supreme Court: such orders are final and appealable; this appeal proceeds on merits (remand) |
| Whether the SERS incident report is protected by attorney-client privilege | Report not privileged; may contain plaintiff/witness statements and author unknown; trial court reviewed in camera and ordered production | Report is privileged because prepared for risk management/law departments and outside counsel in anticipation of litigation | Trial court (affirmed): Clinic failed to prove the report was privileged; production ordered |
| Whether the Clinic met its burden to show report prepared in anticipation of litigation or by counsel/risk-management | Burnham: no showing; absence of author/witness ID suggests no privilege | Clinic: relied on analogous cases and argued report aided legal investigation (cited CCHS) | Court: distinguished CCHS on facts (there, author was counsel/risk manager and affidavit supported anticipation of litigation); Clinic here did not provide comparable proof, so privilege not shown |
| Standard of review for privilege claim | n/a | n/a | Legal question of privilege reviewed de novo; discovery rulings reviewed for abuse of discretion; applying law, privilege not established |
Key Cases Cited
- Smith v. Chen, 142 Ohio St.3d 411, 31 N.E.3d 633 (Ohio 2015) (discusses final-appealable nature of discovery orders and R.C. 2505.02(B)(4))
- Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28 (Ohio App. 2003) (sets elements party must prove to invoke attorney-client privilege)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (Ohio 2005) (distinguishes statutory testimonial privilege from broader common-law attorney-client confidentiality)
- Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 (Ohio 2009) (discovery disputes reviewed for abuse of discretion; privilege questions are legal and reviewed de novo)