Burnham v. Cleveland Clinic (Slip Opinion)
89 N.E.3d 536
Ohio2016Background
- In a slip-and-fall suit, plaintiff Burnham sought an incident report the Cleveland Clinic had generated after the July 2012 accident; the Clinic asserted discovery protections including attorney-client privilege.
- The trial court reviewed sealed materials (privilege log and affidavit) and ordered production of the incident report.
- The Clinic appealed to the Eighth District, which dismissed for lack of jurisdiction under R.C. 2505.02(B)(4), relying on Smith v. Chen.
- The Supreme Court of Ohio accepted review to clarify whether orders compelling production of allegedly privileged materials are final, appealable orders and to limit Chen.
- The Court held that orders compelling disclosure of materials allegedly protected by the attorney-client privilege are final and immediately appealable under R.C. 2505.02(B)(4)(b) because the confidentiality harm is irreparable; work-product claims remain distinct and may require additional showing.
- The Court reversed the appellate dismissal and remanded for merits review of whether the trial court erred in ordering production.
Issues
| Issue | Plaintiff's Argument (Burnham) | Defendant's Argument (Clinic) | Held |
|---|---|---|---|
| Whether an order compelling production of materials alleged to be protected by attorney-client privilege is a final, appealable order under R.C. 2505.02(B)(4) | The disclosure is discoverable; no immediate appeal necessary | Immediate appellate review required because disclosure irreparably breaches confidentiality | Yes—orders compelling production of materials alleged to be attorney-client privileged are final and appealable under R.C. 2505.02(B)(4)(b) |
| Whether Smith v. Chen controls and bars interlocutory appeals of disclosure orders asserting privilege/work product | Chen applies to privileged discovery and supports interlocutory review only in narrow circumstances | Chen should not preclude immediate appeal where attorney-client privilege is asserted | Chen is limited to its facts (work-product context); it does not control attorney-client privilege claims |
| Whether the attorney work-product doctrine automatically yields the same appellate protection as attorney-client privilege | Discovery of work product should be immediately appealable like attorney-client communications | Work product is different—qualified protection; appellate review after final judgment often adequate | Work-product claims remain distinct; may require a showing under R.C. 2505.02(B)(4)(b) beyond a mere assertion of privilege |
| What showing a party must make to invoke immediate appellate jurisdiction when a trial court orders production of allegedly privileged materials | Immediate appeal warranted when confidentiality (privilege) is claimed | Must show that postjudgment appeal would be ineffective or meaningless | For attorney-client privilege, prejudice is inherent and immediate review is appropriate; trial courts should explain reasons for granting production to aid review |
Key Cases Cited
- Smith v. Chen, 142 Ohio St.3d 411 (2015) (limited by this decision to its work-product facts and explained does not control attorney-client privilege claims)
- Muncie, 91 Ohio St.3d 440 (2001) (discusses irreparable harm and final-appealable-order requirements for provisional remedies)
- Hickman v. Taylor, 329 U.S. 495 (1947) (establishes the federal work-product doctrine and rationale for qualified protection)
- Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209 (2001) (describes purpose of attorney-client privilege to promote frank communications)
- Squire, Sanders & Dempsey L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (distinguishes attorney-client privilege from work-product protections)
- Nelson v. Toledo Oxygen & Equip. Co., Inc., 63 Ohio St.3d 385 (1992) (explains why disclosure of work product is generally remediable on appeal)
- Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003) (framework discussed in concurring opinion for treating interlocutory review and final-order principles)