Plogger v. Myers, 100 N.E.3d 104

Rodney Plogger sued Justin Myers for personal injuries from an automobile accident and was deposed during discovery.
During the deposition, counsel objected to questions about who referred Plogger to his treating physician, asserting attorney-client privilege; the court directed that the questions be answered but the deposition ended without answers.
Plogger filed a motion in limine to preclude questioning on that subject as privileged; the trial court denied the motion, characterizing the question as about an underlying fact and relevant to physician bias/credibility.
Plogger appealed the in limine denial, arguing the referral question sought privileged communications (attorney advice).
The appellate court considered whether the denial of the motion in limine is a final, appealable order and whether it can resolve the privilege question now.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of motion in limine excluding testimony about who referred plaintiff to treating physician is a final, appealable order	Plogger: the question seeks whether attorney advised or requested the referral, which is a privileged communication and disclosure would breach the privilege	Myers: the referring-act is an underlying fact, not a communication, so it isn’t privileged and is relevant to bias/credibility	Denied appellate jurisdiction: an in limine ruling is tentative and not a final order; appeal dismissed for lack of jurisdiction
Whether the specific referral question is protected by the attorney-client privilege	Plogger: attorney’s recommendation to see a particular doctor is a protected communication (cites out-of-state authority)	Myers: the act of referring is an underlying non-privileged fact	Court: did not decide on the privilege merits because the in limine ruling is not final; no substantive determination made

Lycan v. Cleveland, 146 Ohio St.3d 29 (court must have a final appealable order to exercise jurisdiction)
Burnham v. Cleveland Clinic, 151 Ohio St.3d 356 (orders compelling production of allegedly privileged material can be final and appealable)
Upjohn Co. v. United States, 449 U.S. 383 (attorney-client privilege protects communications, not underlying facts)
State v. Grubb, 28 Ohio St.3d 199 (ruling on motion in limine is tentative and not subject to immediate review absent preservation at trial)
State v. Hancock, 108 Ohio St.3d 57 (denial of motion in limine on privilege grounds does not preserve error absent objection at trial)
Worley v. Cent. Florida Young Men’s Christian Assn., 228 So.3d 18 (Florida case holding that disclosure that attorney requested a referral seeks privileged communication)