Edwards v. Edwards
151 N.E.3d 6
Ohio Ct. App.2019Background
- Plaintiffs-appellees Walter Edwards, Jr. and Molly Edwards sued Bridget Edwards for defamation, IIED, undue influence, false police reports, interference with inheritance, frivolous conduct, and abuse of process; Walter Edwards Sr. intervened and filed counterclaims against Plaintiffs.
- During discovery Plaintiffs moved to compel production of appellants’ wills, trusts, and estate-planning documents; appellants objected invoking attorney-client privilege and work-product protection.
- The trial court ordered production, finding the documents directly related to the litigation and that no privilege was properly asserted or, alternatively, that any privilege had been waived.
- Appellants appealed, raising whether (1) the will/trust/estate documents are protected by attorney-client privilege, and (2) whether any privilege was waived by appellants’ pleadings.
- The appellate court held the documents are protected by the common-law attorney-client privilege, but that the privilege was impliedly waived to the extent appellants’ counterclaim put factual content of those documents at issue.
- The court affirmed in part and reversed in part, remanding for in camera review and directing the trial court to limit disclosure (and enter a protective order) to information in the documents directly germane to the counterclaim allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are will, trust, and estate-planning documents protected by the attorney-client privilege? | Documents are discoverable/relevant and not categorically privileged. | Documents and related drafts/communications are privileged under the common-law attorney-client doctrine. | Privileged under the common-law attorney-client privilege. |
| Does the statutory testimonial privilege (R.C. 2317.02) bar production of documents? | Statutory privilege should prevent disclosure. | Statute governs testimonial competency, not production of non-testimonial documents. | Statutory privilege inapplicable to compelled production of documents; common-law privilege governs. |
| Did appellants waive the privilege by alleging contents of the documents in their counterclaim? | No waiver; privilege remains intact. | Any privilege is waived only to the extent appellants put contents at issue. | Implied waiver: privilege waived as to factual allegations germane to the counterclaim under the Hearn tripartite test. |
| Scope of production / public disclosure / protective order | Plaintiffs seek full documents. | Defendants seek limitation and protective order to prevent public disclosure of private provisions. | Produce only materials directly related to the counterclaim; trial court to perform in camera review and impose agreed protective order limiting disclosure. |
Key Cases Cited
- Jackson v. Greger, 110 Ohio St.3d 488 (2006) (statutory attorney-client testimonial privilege protects communications at discovery/trial but is testimonial in scope)
- Grace v. Mastruserio, 182 Ohio App.3d 243 (2007) (statutory privilege limited to testimonial competency; common-law privilege governs non-testimonial discovery)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (2005) (articulates elements of common-law attorney-client privilege and that only the client may waive it)
- Reed v. Baxter, 134 F.3d 351 (6th Cir.) (formulation of common-law privilege elements quoted by Ohio courts)
- Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975) (tripartite test for implied waiver: affirmative act puts privileged info at issue, makes it relevant, and denial would withhold information vital to opposing party)