In re Special Grand Jury Investigation
145 N.E.3d 1206
Ohio Ct. App.2019Background
- Ohio Attorney General's Medicaid Fraud Control Unit served subpoenas duces tecum on a rehabilitation/nursing center and its parent for internal investigation materials relating to a self-reported incident (SRI) alleging staff-on-resident abuse.
- Appellants withheld documents (investigation cover sheet, incident/accident report, 12 witness statements, administrator's notes) and logged them as work product; they produced the 12 statements after initial court orders and submitted three remaining documents for in camera review.
- Trial court found the materials were not prepared in anticipation of litigation (they were created to meet mandatory reporting and internal business needs) and ordered production; appellants appealed, raising work-product protection and subpoena authority objections.
- Appellants argued their counsel directed the investigation and thus the documents were prepared in anticipation of litigation; the State argued the documents were routine, mandated investigatory records accessible to regulators and not shielded by work product.
- The Tenth District affirmed, concluding the remaining withheld documents were prepared in the ordinary course to satisfy regulatory reporting (the SRI), not in anticipation of litigation, so they were not protected work product; it affirmed the order compelling production.
Issues
| Issue | Appellants' Argument | State's Argument | Held |
|---|---|---|---|
| Whether internal investigation documents are protected work product (prepared in anticipation of litigation) | Webster directed the administrator to gather statements and evaluate legal exposure, so documents were prepared because of anticipated litigation and thus protected | Documents were created to comply with mandatory reporting and internal business processes; not prepared primarily because of anticipated litigation | Documents not protected; prepared in ordinary course for SRI and regulatory compliance, so no work-product protection |
| Whether the State could secure the documents via subpoena duces tecum | Appellants contended the subpoena improperly reached counsel-directed materials protected from discovery | State obtained subpoenas as part of grand-jury/Medicaid-fraud inquiry and sought routine investigatory records; regulatory access to such records exists | Court affirmed production under subpoena after in camera review; documents must be produced |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (1947) (establishes work-product doctrine and its rationale)
- United States v. Nobles, 422 U.S. 225 (1975) (work-product protection extends to materials prepared by counsel's agents)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (internal corporate investigatory materials may implicate attorney-client and work-product protections; special protection for mental impressions)
- United States v. Roxworthy, 457 F.3d 590 (6th Cir.) (two-part test for "anticipation of litigation": subjective anticipation and objective reasonableness)
- Squire, Sanders & Dempsey, LLP v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (Ohio recognition of qualified work-product protection and standards for discovery)
- State ex rel. Greater Cleveland Regional Transit Auth. v. Guzzo, 6 Ohio St.3d 270 (1983) (trial court has discretion to determine existence of privilege and good-cause for disclosure)