Smith v. Chen
2013 Ohio 4931
Ohio Ct. App.2013Background
- Henry Smith sued Dr. Chen and OrthoNeuro for medical malpractice arising from spinal surgery in 2007, alleging lasting injuries and damages.
- Defendants ordered to disclose surveillance video prepared by defense investigators; they contend the video is attorney work-product and privileged.
- Plaintiff moved to compel production or to prohibit use of the surveillance video at trial, arguing need to assess authenticity and manipulation.
- Trial court granted the motion to compel, concluding good cause existed to overcome work-product privilege; held the rule limits did not bar production.
- Appellate posture: defendants appeal the discovery order; issue to review is whether good cause justifies production and whether the order is final and appealable.
- Court affirms, holding the video is discoverable for good cause; the video may be directly at issue in damages and is under defendants’ sole control, justifying production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is surveillance video protected by attorney work-product privilege? | Smith argues video is discoverable for good cause and not immune to privilege. | Chen/OrthoNeuro contend the video is privileged work-product and should not be produced. | Yes; the video is protected but may be discovered for good cause. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (1947) (recognizes the attorney work-product privilege and privacy in litigation preparation)
- Squire, Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010-Ohio-4469) (good-cause standard for discovering attorney work product)
- First Bank of Marietta v. Mascrete, Inc., 79 Ohio St.3d 503 (1997) (federal law on work-product is instructive where rules are similar)