Pagano v. Heck
2017 Ohio 8564
| Ohio Ct. App. | 2017Background
- Pagano (Any Excuse for a Party) and Heck formed a partnership operating SloMo Booths, LLC to design and sell slow-motion photo booths. Dispute arose over accounting and duties under the partnership agreement.
- Pagano sued (April 2015) seeking an accounting and money damages; Heck counterclaimed alleging Pagano failed to perform partnership duties.
- Parties entered an agreed protective/confidentiality order (Jan. 5, 2016) that included a stipulation that Pagano should not obtain confidential business materials absent a court first declaring entitlement to an accounting.
- Multiple motions to compel followed; the trial court ordered production of outstanding discovery including a “full accounting” several times, then attempted to modify prior orders to align with the parties’ stipulation, but ultimately issued an October 14, 2016 order requiring production within 14 days and warning of sanctions.
- Heck appealed the October 14, 2016 discovery order, arguing it improperly compelled confidential/privileged materials and a premature accounting; the Court of Appeals found the order appealable and reversed.
Issues
| Issue | Plaintiff's Argument (Pagano) | Defendant's Argument (Heck) | Held |
|---|---|---|---|
| Whether trial court erred by ordering disclosure of confidential/privileged materials | Pagano argued Heck failed to invoke privilege procedures (no in camera request or privilege log), so order stands | Heck argued the agreed protective order and stipulation barred disclosure absent a judicial determination of entitlement and that trial court should have done an in camera review before ordering production | Court held trial court erred: ordering disclosure without in camera review violated parties’ agreement and risked compelled disclosure of privileged/confidential material; assignments 1 & 2 sustained |
| Whether trial court could compel a full accounting during discovery before a trier of fact determines entitlement | Pagano contended discovery including accounting was proper and necessary; Heck had not preserved privilege procedures | Heck argued entitlement to an accounting was a merits question; forcing an accounting during discovery would circumvent the agreed stipulation and prejudge the primary dispute | Court held the order effectively resolved the central controversy and prematurely compelled a de facto accounting; appealable and reversible |
| Whether trial court erred in compelling responses to a second set of interrogatories in violation of local rule | Pagano maintained compliance was proper | Heck argued the interrogatories violated local rule and should be struck | Moot — Court declined to address this assignment because reversal of the discovery order rendered it moot |
Key Cases Cited
- Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184 (1972) (appellate courts must raise sua sponte questions of jurisdiction)