2013 Ohio 3737
Ohio Ct. App.2013Background
- In 1999 Rhode Island (represented by Motley Rice) sued paint manufacturers including Sherwin‑Williams; a jury verdict in 2006 was reversed by the Rhode Island Supreme Court in 2008. During post‑appeal motions, Motley Rice filed a one‑page exhibit (page 9 of a 34‑page fax) opposing Sherwin‑Williams’ cost request. Sherwin‑Williams claimed those materials were confidential and privileged.
- Sherwin‑Williams filed suit in Cuyahoga County (2009) against Motley Rice and former employee Stephen Walker alleging conversion, misappropriation of trade secrets, civil conspiracy, and related torts, asserting Motley Rice possessed 80 PowerPoint slides and other privileged materials taken from Sherwin‑Williams.
- Motley Rice deposited the 34‑page fax under seal but refused to disclose how it obtained the fax or internal communications about it; Sherwin‑Williams served discovery seeking internal Motley Rice communications and provenance/use information about the fax.
- The trial court ordered depositions and production of documents; it held internal Motley Rice communications were not attorney‑client privileged, but might be work product and thus required a showing of good cause. This court in a prior decision (Motley Rice I) affirmed the no‑privilege ruling but remanded because the trial court had not performed an in‑camera review before ordering asserted work product produced.
- On remand the trial court conducted an in‑camera review and ordered production of nine exhibits and certain written deposition answers. Motley Rice appealed, arguing the ordered materials contained opinion work product and that Sherwin‑Williams failed to show good cause for compelled disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordered internal Motley Rice communications constitute opinion work product and are privileged | Sherwin‑Williams argued materials are at issue and necessary to prove how Motley Rice acquired, used, and disseminated Sherwin‑Williams’ documents | Motley Rice argued the communications contain mental impressions, strategy, and thus are protected opinion work product | Court: Under Ohio law work product (including opinion) can be ordered upon good cause; here court found materials were work product but producible because good cause shown and no abuse of discretion |
| Whether Sherwin‑Williams established the required good‑cause showing under Civ.R. 26(B)(3) | Sherwin‑Williams asserted the materials are directly at issue, compellingly needed to establish provenance/use, and unavailable elsewhere | Motley Rice contended Sherwin‑Williams failed to show compelling need and the information was protected | Court: Good cause shown — materials relevant, directly at issue, compelling need because internal documents filled gaps and were otherwise unavailable |
| Whether internal communications were protected by attorney‑client privilege | Sherwin‑Williams maintained these were not privileged and sought discovery | Motley Rice claimed communications were privileged attorney‑client or otherwise protected | Court: Prior ruling affirmed — internal Motley Rice communications are not attorney‑client privileged (they were internal or with co‑counsel), so privilege did not block production |
| Whether certain identified exhibits (16,17,64,66) were work product or discoverable | Sherwin‑Williams argued attachments and content were non‑privileged and relevant | Motley Rice asserted work‑product protection over these exhibits | Court: Those exhibits were not work product (attachments did not reveal strategy/impressions) and are discoverable under Civ.R.26(B)(1) |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (discusses distinction between fact and opinion work product)
- Squire, Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (Ohio standard for good cause under Civ.R.26(B)(3))
- Jackson v. Greger, 110 Ohio St.3d 488 (defining need showing for work product disclosure)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion standard)