Sherwin-Williams Co. v. Rice
2012 Ohio 809
Ohio Ct. App.2012Background
- Rhode Island lead-paint litigation involved Motley Rice as co-counsel; Sherwin-Williams sought discovery of a 34-page fax (Exhibit 16) and related communications; Rhode Island court found Exhibit 16 not privileged as factual, but the 34-page packet remained sealed; Sherwin-Williams sued Motley Rice in Cuyahoga County for misconduct involving the 34-page fax and Walker’s disclosures; May 2010 order compelled deposition of Motley Rice attorneys and in-camera review of privilege materials; trial court held communications among Motley Rice and Rhode Island officials were non-client communications but protected as work product with good cause; appellate court must review privilege and work-product issues de novo and abuse of discretion standards.
- Procedural posture: interlocutory appeal from discovery order; court ordered in-camera review of privilege materials and depositions; decision splits on privilege vs. work-product and need for in-camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether internal attorney communications are protected by attorney-client privilege | Sherwin-Williams argues privilege covers internal Motley Rice communications. | Motley Rice asserts internal communications among its attorneys and Rhode Island co-counsel are privileged. | First and second assignments overruled; internal communications not protected by privilege. |
| Whether materials constitute attorney work product and require production for good cause | Sherwin-Williams contends good cause exists; materials relevant and unavailable. | Motley Rice argues materials are protected work product not subject to broad disclosure. | Fourth assignment sustained; good-cause finding requires in-camera review; remand for in-camera examination. |
| Whether an in-camera review was required before ordering production of work product | In-camera review not strictly necessary if good cause shown. | In-camera review is essential to determine waivers/privilege. | Remanded for in-camera review of privilege log, deposition answers, and related documents. |
| Scope of discovery related to possession, control, and use of Sherwin-Williams’ documents | Discovery aimed at tracing possession/use of confidential documents. | Motley Rice contends material is not privileged and discovery is overbroad. | Judgment affirmed in part; reversed in part to permit in-camera review and proper scope. |
Key Cases Cited
- Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537 (2009-Ohio-1767) (attorney-client privilege; investigative reports as communications related to legal services)
- Sutton v. Stevens Painton Corp., 193 Ohio App.3d 68 (2011-Ohio-841) (good-cause review; work-product protective standard)
- Squire Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010-Ohio-4469) (history and standards of Civ.R. 26(B)(3) good cause; tangible/intangible work product)
- Jackson v. Greger, 110 Ohio St.3d 488 (2006-Ohio-4968) (meaning of good cause under Civ.R. 26(B)(3); relevance and availability of materials)
- Hickman v. Taylor, 329 U.S. 495 (1947) (origin of the work-product doctrine; protecting attorney mental impressions)