DMS Constr. Ents., L.L.C. v. Homick
2020 Ohio 4919
Ohio Ct. App.2020Background:
- August 27, 2018 fire damaged adjacent condominium units owned by appellants (Daniel and Victoria Homick) and appellee DMS Construction; appellants insured by Liberty Mutual.
- Homicks retained/used fire investigator/expert Adam Roy of Fire and Explosion Consultants; a "joint laboratory examination" of evidence occurred (Sept. 2019).
- Prior defense counsel (John Rasmussen, Liberty Mutual employee) allegedly agreed to share any evidence developed during the expert inspection; new counsel (Allison Hayes) later objected to producing expert materials asserting work-product/consulting-expert protection.
- DMS subpoenaed Roy’s firm for documents and sought to depose Roy; Homicks moved for a protective order asserting consulting-expert/work-product privilege.
- Trial court denied the protective order, allowed deposition of Roy (finding ambiguity about who retained Roy, prior counsel’s representations, and good cause to pierce work-product protection); Homicks appealed.
- The Eighth District dismissed the appeal for lack of jurisdiction because Homicks failed to show the discovery order (involving work-product/consulting-expert assertions) was a final, appealable order under R.C. 2505.02(B)(4).
Issues:
| Issue | DMS's Argument | Homicks' Argument | Held |
|---|---|---|---|
| Whether trial court erred in denying protective order and allowing deposition of consulting expert Roy | Prior defense counsel waived protection by agreeing to share inspection results; Roy had been identified as a testifying expert and evidence was needed — good cause exists | Roy is a non-testifying consulting expert; his files/opinions are work product and protected under Civ.R. 26 | Court did not reach merits: appeal dismissed for lack of jurisdiction because appellants failed to show immediate appeal was necessary under R.C. 2505.02(B)(4) |
| Whether the consulting-expert/work-product doctrine protects Roy’s testimony and materials | Even if protection applied, plaintiff showed good cause (destructive testing; reliance on prior counsel’s representations) and Roy had been identified as testifying expert | Work-product/consulting-expert privilege shields opinions prepared in anticipation of litigation; deposition improperly compelled | Trial court found ambiguity about who retained Roy, prior counsel’s representations, and that Homicks failed to prove work-product protection; but appellate court did not decide merits because of jurisdictional dismissal |
| Whether prior counsel’s representations waived work-product protection | Prior counsel (Rasmussen) had agreed to share evidence; defense conduct can waive work-product protection | New counsel disclaimed agreement and insisted on privilege; any prior statements insufficient or not binding | Trial court relied on prior counsel’s representations as basis for good cause; appellate court emphasized that waiver/disclosure can destroy work-product protection but declined to resolve merits |
| Whether the order was final and appealable under R.C. 2505.02(B)(4) | The order was not a compelled production of attorney-client privileged material and contained safeguards; postjudgment appeal would be meaningful | Order compelled discovery of protected work-product/consulting-expert material and thus was immediately appealable | Appellate court held appellants did not make the required showing that a postjudgment appeal would be inadequate; under Chen/Burnham line, disclosure of work product is not automatically immediately appealable; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Squire, Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 937 N.E.2d 533 (Ohio 2010) (explains work-product rule and good-cause standard for disclosure).
- Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 89 N.E.3d 536 (Ohio 2016) (distinguishes attorney-client privilege from work product for final-appealability analysis).
- Smith v. Chen, 142 Ohio St.3d 411, 31 N.E.3d 633 (Ohio 2015) (appellate courts lack jurisdiction unless appellant shows postjudgment appeal would be inadequate for orders compelling work-product discovery).
- Jackson v. Greger, 110 Ohio St.3d 488, 854 N.E.2d 487 (Ohio 2006) (discusses scope and purpose of work-product protection).
- Walters v. Enrichment Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890 (Ohio 1997) (discovery orders generally interlocutory).
- In re Grand Jury Proceeding of Doe, 150 Ohio St.3d 398, 82 N.E.3d 1115 (Ohio 2016) (treats compelled production of privileged materials as potentially final).
- Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (Ohio 1961) (on irreparable harm from disclosure of privileged communications).