Scott Elliott Smith Co. v. Carasalina, L.L.C.
950 N.E.2d 624
Ohio Ct. App.2011Background
- Plaintiffs Scott Elliott Smith Company, L.P.A., its predecessor, third-party defendant Smith Phillips & Associates Company, L.P.A., and third-party defendant Scott Elliot Smith appealed a trial court denial of their motion to quash subpoenas served on two IT expert witnesses by appellees Big Thumb, L.L.C., Highmark Advisors, L.L.C., and Digital Spark Studio, L.L.C.
- Plaintiffs filed a 2010 breach-of-lease complaint; a first amended complaint followed on January 27, 2010, and a second amended complaint on June 15, 2010, asserting eight counts including alleged access to attorney-client privileged material and disruption of law-office operations.
- A protracted discovery dispute led to multiple motions to compel, motions for contempt, motions to quash, and protective orders, culminating in a confidentiality stipulation and protective order on August 10, 2010.
- On November 8, 2010, subpoenas were served on two expert witnesses (Lively and Netwave); a motion to quash was filed on November 9, 2010 and heard on November 17, 2010.
- The trial court denied the motion to quash and adopted appellees’ proposed order; appellants timely appealed, challenging the subpoena scope and alleged risks to privilege and to electronic data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly denied quashing subpoenas with respect to redaction of work product. | Smith argues privilege requires redaction rights. | Big Thumb argues existing rules suffice; no explicit claim supported. | Denied; court held Civ.R. 45(D)(4) not satisfied and order adequate. |
| Whether the subpoenas unlawfully allow access to privileged communications via the expert systems. | Smith asserts risk of attorney-client privilege breach through experts’ access. | appellees contend safeguards and scope prevent privilege breach; no proven risk. | Overruled; no demonstrated breach or capable path to obtain privileged material. |
Key Cases Cited
- Tracy v. Merrell Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147 (Ohio 1991) (abuse-of-discretion standard for discovery orders)
- Mason v. Booker, 185 Ohio App.3d 19 (Ohio 2009) (privilege in discovery decisions; de novo review when privilege involved)
- Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 (Ohio 2009) (whether information is confidential/privileged is a question of law)