2018 Ohio 186
Ohio Ct. App.2018Background
- Kenneth's Hair Salons & Day Spas filed a Civ.R. 27 petition (Oct. 2, 2017) to perpetuate testimony based on alleged defamatory social-media posts by Jane Braun.
- Kenneth's served Braun; the trial court granted the petition on Oct. 24, 2017, without a response or hearing, ordering a pre-complaint deposition.
- Braun moved for reconsideration arguing the petition failed to meet Civ.R. 27(A)(1)(a) and that Civ.R. 27(A)(2) notice requirements were not met; the trial court did not rule on that motion.
- Braun timely appealed the trial court’s Oct. 24 order; Kenneth's moved in this court to dismiss the appeal for lack of a final appealable order.
- The Tenth District considered whether a Civ.R. 27 pre-suit discovery order is a final appealable order under R.C. 2505.02(B)(1) or (B)(4).
- The court denied the motion to dismiss, holding the Civ.R. 27 order is a final appealable order under R.C. 2505.02(B)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court's Civ.R. 27 order is a final appealable order | Kenneth's: pre-suit deposition order is final and appealable (analogous to Civ.R. 34(D) precedent) | Braun: order is interlocutory; Civ.R.27 petition defective and inadequate notice required a hearing | Court: order is final under R.C. 2505.02(B)(1); appeal not dismissed |
| Whether the order is appealable as an order granting a provisional remedy under R.C. 2505.02(B)(4) | Kenneth's: deposition is a provisional remedy and appealable if it risks disclosure of privileged material | Braun: (implicit) deposition is ordinary discovery and not a final provisional remedy | Court: not shown Braun identified privileged/confidential material; declined to decide generally but found (B)(4) inapplicable here |
Key Cases Cited
- Bejarano v. In re Bejarano, 65 Ohio App.3d 202 (3d Dist. 1989) (denial of Civ.R.27 relief is appealable; granting Civ.R.27 generally not seen as affecting a substantial right)
- Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94 (1990) (privilege claims must rest on specific constitutional or statutory provisions)
- Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60 (1993) (order affecting a substantial right is one that, if not appealable immediately, would foreclose appropriate future relief)
- Natl. Bank, Northeast v. Amedia, 118 Ohio App.3d 542 (9th Dist. 1997) (non-disclosure of indiscoverable material is a substantial right)
- Covington v. MetroHealth Sys., 150 Ohio App.3d 558 (10th Dist. 2002) (burden rests on party seeking exclusion to show testimony/documents are confidential or privileged)
- Mason v. Booker, 185 Ohio App.3d 19 (10th Dist. 2009) (discovery orders requiring production of privileged/confidential information are final and appealable)