N.E. Monarch Constr., Inc. v. Morganti Ents., Inc.
2021 Ohio 2438
Ohio Ct. App.2021Background
- Monarch Construction sued Morganti Enterprise (subcontractor) on breach, negligence, fraud, and veil-piercing claims; cases were consolidated.
- Monarch served extensive discovery, notably Interrogatory No. 13 (identify evidence supporting defenses/counterclaim) and RFP No. 23 (all documents/communications related to the lawsuit).
- Morganti objected asserting attorney-client and work-product privilege, provided limited supplemental responses, and initially failed to identify withheld documents with specificity in a privilege log.
- The trial court granted Monarch’s motion to compel in full without conducting an in camera review or requiring Morganti to identify specific withheld materials.
- Morganti filed a supplemental discovery response and privilege log the same day it appealed; Monarch moved to dismiss the appeal for waiver. The appellate court denied the motion to dismiss, reversed in part, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by compelling production of materials claimed privileged without in camera review | Monarch: Morganti failed to properly assert privilege and waived protection, so production order was proper | Morganti: The requests encompassed privileged attorney work product / communications and the court should have reviewed contested documents in camera | Court: Trial court abused its discretion for the requests where privilege was asserted; remanded for the trial court to require specificity and perform in camera review |
| Whether Morganti waived privilege and whether the appeal was properly before the court | Monarch: Morganti waived objections by not timely providing a privilege log; appeal should be dismissed | Morganti: Objections were preserved; order compelling privileged material is final and appealable | Court: Denied dismissal; an order compelling privileged material is final/appealable and Morganti’s claim of privilege was preserved enough to require in camera review |
Key Cases Cited
- Burnham v. Cleveland Clinic, 89 N.E.3d 536 (Ohio 2016) (order compelling production of privileged material is final and appealable)
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (abuse-of-discretion standard)
- DeCuzzi v. Westlake, 947 N.E.2d 1229 (Ohio App. 2010) (trial court abused discretion by ordering production of possible work product without in camera review)
- Jacobellis v. Ohio, 378 U.S. 184 (U.S. 1964) (noting the relevance of an in-camera, fact-specific assessment — "I know it when I see it")